Roeder v. Normandy Apartments Holdings, LLC et al
Filing
50
OPINION AND ORDER by Judge James H Payne ; dismissing/terminating case (terminates case) ; granting 28 Motion for Summary Judgment (Documents Terminated: 28 MOTION for Summary Judgment , 43 MOTION in Limine and Brief in Support ) (pll, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DELBERT ROEDER,
Plaintiff,
v.
NORMANDY APARTMENTS
HOLDINGS, LLC, a domestic limited
liability company; and
RMG PROPERTY MANAGEMENT,
LLC, a foreign liability company,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-CV-494-JHP-PJC
OPINION & ORDER
Before the Court is Defendants’ Motion for Summary Judgment [Doc. No. 28]. After
consideration of the briefs, and for the reasons stated below, Defendants’ Motion for Summary
Judgment is GRANTED.
BACKGROUND
On February 27, 2013, Plaintiff Delbert Roeder (“Plaintiff”) was visiting his son, Jeffery
Roeder, who lived at the Normandy Apartments owned by Defendant Normandy Apartments
Holdings LLC, and managed by Defendant RMG Property Management, LLC. According to the
Petition, during this visit Plaintiff “tripped due to a faulty threshold lip and fell violently to the
ground.”
[Doc. No. 2, at ¶ 3].
Plaintiff alleges, “[t]he area of said threshold had been
negligently allowed to remain unmarked and unmaintained causing serious injury to the
Plaintiff.” [Id.].
On July 25, 2014, Plaintiff filed a Petition for Damages in Tulsa County District Court
against the Defendants, alleging a single count of negligence against each Defendant. [Doc. No.
1
2]. Defendants subsequently removed the action to this Court without objection. On June 5,
2015, Defendants filed a Motion for Summary Judgment, arguing Defendants had no duty to
protect Plaintiff from the threshold of the doorway. [Doc. No. 28].
Thereafter, on June 18, 2015, Plaintiff submitted in deposition testimony that the
threshold had nothing to do with his injury, but rather a gust of wind blew the exterior door shut
behind him, causing him to fall through the doorway. [Doc. 38-1, at 39:18-40:1 (Deposition of
Delbert Roeder)]. As a result of this testimony, which differs materially from what Plaintiff pled
in the Petition, Plaintiff stated in his Response filed on July 2, 2015: “The Plaintiff is filing a
Motion to Amend the Complaint to restate the facts of the case.” [Doc. No. 34, at 2]. In the
Response, Plaintiff further stated, “[t]here was nothing wrong with the threshold.”
[Id.].
Plaintiff indicated it was Plaintiff’s son, not Plaintiff, who attributed the fall to the threshold. [Id.
at 3.] Defendants filed a Reply on July 17, 2015, urging the Court to grant summary judgment
based on the facts pled in the Petition and the Statement of Facts contained in Plaintiff’s
Response. To date, Plaintiff has not formally sought leave to file an amended Petition.
DISCUSSION
As a general rule, summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine if the evidence is such
that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the
suit under the governing law.” Id. In making this determination, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
2
Thus, the inquiry for this Court is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Id. at 251-52.
I.
Plaintiff’s Theory of Liability
A.
The “Threshold Lip” Is the Only Properly Alleged Theory
As an initial matter, the Court must determine which theory of liability—the threshold lip
or the exterior door—is the proper subject of the motion for summary judgment. Defendants
argue Plaintiff’s theory he “tripped due to a faulty threshold lip” should govern, because this was
the only theory alleged in the Petition. Defendants assert the Petition did not provide them with
fair notice of Plaintiff’s intent to allege liability based on a door that blew shut, and this lack of
fair notice continued well into the litigation. Plaintiff’s Joint Status Reports, filed on October 15,
2014, and January 26, 2015, both stated Plaintiff’s injury was caused by the “negligent
installation of a door threshold.” [Doc Nos. 14, 18]. In those same Joint Status Reports,
Defendants indicated their intent to file a dispositive motion based on the fact that the threshold
constituted an open and obvious condition. [Id.]. Adding to the lack of fair notice, Plaintiff
declined to amend his pleading by the Court-imposed deadline of March 2, 2015. [Doc. No. 20
(Scheduling Order)].
Federal Rule of Civil Procedure 8(a) requires the complaint contain only a short and plain
statement of the claim showing that the pleader is entitled to relief. At the heart of Rule 8’s
notice pleading regime, however, is fair notice to the opposing party of the claims against it.
FDIC v. Grant, 8 F. Supp. 2d 1275, 1287 (N.D. Okla. 1997) (citing Mountain View Pharm. v.
Abbot Labs., 630 F.2d 1383, 1386 (10th Cir. 1980). Here, the Court finds the Petition failed to
provide Defendants with fair notice of his theory of liability based on the exterior door. The
3
Petition relies on a theory based solely on the threshold lip, and Plaintiff gave no hint of the
“exterior door” theory until long after the deadline to amend pleadings had passed. Defendants
justifiably relied on the “threshold lip” theory in preparing their motion for summary judgment.
For these reasons, the Court concludes summary judgment may be determined based on the facts
alleged in the Petition and the undisputed facts as stated in Plaintiff’s Response brief. To do
otherwise would reward Plaintiff’s prolonged delay in revealing his true theory of liability and
would be unfairly prejudicial to Defendants.
B.
Plaintiff May Not Amend the Petition to Assert a Different Theory of
Liability
Moreover, to the extent Plaintiff sought leave to amend his complaint in the Response
brief, the Court denies the request. Plaintiff stated in his Response that he “is filing a Motion to
Amend the Complaint to restate the facts of this case,” in order to allege the exterior door, rather
than the threshold, caused his fall. [Doc. No. 34, at 2]. As explanation for this crucial error, the
Response indicated Plaintiff proceeded with this case for nearly a year based on the observations
of Plaintiff’s son, Jeffrey Roeder, who witnessed his father’s fall and believed the threshold to be
the cause. [Id. at 2-3]. Indeed, Jeffrey Roeder testified he “had never really ever discussed the
accident” with his father to discover “what really happened” until around May 2015, over two
years after the accident. [Doc. No. 38-2, at 13:6-20]. Plaintiff acknowledged his testimony
“materially differs from what has been pled in his state court Petition.” [Doc. No. 34, at 1].
Nonetheless, over two months after filing the Response and less than one month before
trial, Plaintiff has failed to file a formal Motion to Amend. 1 Thus, the Court will treat Plaintiff’s
1
The Court also notes Plaintiff failed to respond to Defendants’ Motion in Limine, filed on September 1, 2015,
which sought to exclude evidence not within the issues raised by Plaintiff in the Petition. [Doc. No. 43].
4
Response as a motion for leave to amend his complaint under Rule 15(a) and deny it.2 Although
leave to amend a pleading is to be “freely given when justice so requires,” the Court may deny
such leave upon a showing of undue delay by the movant. Cohen v. Longshore, 621 F.3d 1311,
1313 (10th Cir. 2010). Indeed, “[i]t is well settled in this circuit that untimeliness alone is a
sufficient reason to deny leave to amend, especially when the party filing the motion has no
adequate explanation for the delay.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365-66 (10th Cir.
1993) (internal citations omitted). Moreover, a motion to amend is subject to denial “[w]here the
party seeking amendment knew or should have known of the facts upon which the proposed
amendment is based but fails to include them in the original complaint.” Id. at 1366 (citing Las
Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)).
Here, Plaintiff’s informal motion to amend is untimely in that it was filed four months
after the Court’s deadline to amend pleadings. Further, Plaintiff knew or should have known his
true theory of liability long before that date and has not offered an adequate explanation for his
delay in seeking to amend. Plaintiff has not alleged that any new facts came to light since the
accident or that Plaintiff changed his version of events. Rather, it appears Plaintiff’s counsel
inexcusably relied on the erroneous observations of Plaintiff’s son, rather than Plaintiff himself,
in filing the Petition. Given the advanced progression of this case, no reasonable explanation
could be proffered to explain why Plaintiff could not have amended the Petition within the
deadline.
Plaintiff’s protracted delay in seeking amendment, without excuse, has placed significant
burdens on Defendants and this Court.
Plaintiff asserts a completely different theory of
2
The Court engages in a Rule 15(a) analysis in the interest of justice, although it is not required to do so in the
absence of a formal motion. Calderon v. Kansas Dep’t of Social and Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir.
1999) (“we conclude that a request for leave to amend must give adequate notice to the district court and to the
opposing party of the basis of the proposed amendment before the court is required to recognize that a motion for
leave to amend is before it.”).
5
causation at a late stage of this case. Plaintiff’s delay resulted in prejudice to Defendants, who
answered, prepared, and litigated this case based on Plaintiff’s specific and only allegation. For
these reasons, Plaintiff’s informal motion to amend the Petition is denied.
II.
Plaintiff’s Negligence Claim—Faulty Threshold
Plaintiff has not provided any evidence to support his claim as alleged in the Petition.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s negligence claim. It is
well-settled in Oklahoma that an action for negligence cannot lie when no duty has been
neglected or violated. Buck v. Del City Apts., Inc., 431 P.2d 360, 365 (Okla. 1967) (citing cases).
In a premises liability case, an owner owes an invitee a duty of exercising reasonable care to
disclose the existence of dangerous defects known to the owner, but unlikely to be discovered by
the licensee, as well as a duty of exercising reasonable care to keep the premises in reasonably
safe condition for the reception of the visitor. Pickens v. Tulsa Metro. Ministry, 951 P.2d 1079,
1083-84 (Okla. 1997).
In the Petition, Plaintiff alleges he tripped on the threshold of the doorway leading to his
son’s apartment. However, Plaintiff asserts in the Statement of Facts section of his Response,
“[t]here was nothing wrong with the threshold.” [Doc. No. 34, at 2]. Defendants agree with this
fact. [Doc. No. 38, at 3]. Further, Plaintiff testified in his deposition that the threshold did not
cause his fall. [Doc. No. 38-1, at 55:6-8]. Plaintiff’s arguments in the Response pertaining to the
broken exterior door are not on point, for the reasons discussed above in Part I. Accordingly, the
undisputed facts show Plaintiff was not injured because of a hidden or faulty threshold on the
premises of Normandy Apartments. Therefore, Plaintiff’s negligence claim based on the faulty
threshold fails as a matter of law, and summary judgment is appropriately granted in Defendants’
favor.
6
CONCLUSION
For the reasons outlined above, the Court concludes that Plaintiff cannot prove his
negligence claim as pleaded in the Petition against Defendants.
Accordingly, Defendants’
Motion for Summary Judgment [Doc. No. 28] is GRANTED.
Moreover, because of Plaintiff’s undue delay in bringing forth his new theory of liability,
and the undue prejudice that would result to Defendants if leave to amend were granted, the
Court concludes this case is DISMISSED WITH PREJUDICE.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?