Beckum v. Swift Response LLC et al
Filing
150
Memorandum Opinion and Order: The Court DENIES Beckum's 90 Motion to Amend the Complaint, DENIES Beckum's 120 motion to extend discovery, GRANTS Ball Corp.'s 117 Motion to Extend the Motion Deadlines, and GRANTS Ball Corp.'s 136 Motion for Summary Judgment. Accordingly, the Court DISMISSES WITH PREJUDICE Beckum's claims against Ball Corp. and will separately issue a final judgment. (Ordered by Judge Brantley Starr on 9/24/2020) (mjr)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
FRENCHIE BECKUM,
Plaintiff,
v.
SWIFT RESPONSE, LLC, PLZ
AEROSCIENCE CORPORATION,
K-G SPRAY-PAK, INC., PLAZE,
INC., BALL CORPORATION, AND
APTARGROUP, INC.,
Defendants.
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Civil Action No. 3:18-CV-555-X
MEMORANDUM OPINION AND ORDER
This is a personal injury case that was removed from state court.
If
commercials are to be believed, Flex Seal can do a great many things. Here, a can of
Flex Seal did something totally different by allegedly self-igniting and severely
burning Frenchie Beckum. At issue are a bevy of pending motions: (1) Beckum’s
motion for leave to file a third amended complaint; (2) Beckum’s motion to extend
discovery; (3) defendant Ball Corp.’s motion to extend the motion deadline; (4) Ball
Corp.’s motion to designate a responsible third party; (5) Ball Corp.’s motion to strike
an expert witness; and (6) Ball Corp.’s motion for summary judgment.
The Court DENIES Beckum’s motion to amend the complaint because it would
impermissibly add a new defendant when limitations has run. The Court DENIES
Beckum’s motion to extend discovery because Beckum lacked diligence. The Court
GRANTS Ball Corp.’s motion to extend the motion deadlines because the reason for
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the delay was medical complications delaying the deposition of Beckum’s expert. And
the Courts GRANTS Ball Corp.’s motion for summary judgment because there is no
evidence that Ball Corp. is liable for its former subsidiary’s design and manufacturing
of the product at issue. 1 Accordingly, the Court DISMISSES WITH PREJUDICE
Beckum’s claims against Ball Corp.—the only remaining defendant. A separate final
judgment will issue shortly.
I. Background
In 2017, Beckum was using a can of ClearCoat Flex Seal when working on a
fountain in his backyard. He claims the can combusted and severely burned his arms,
body, and face. He was transported to Parkland Hospital and treated for the burns.
Beckum sued Lowe’s Home Centers, LLC (where he purchased the Flex Seal),
PLZ Aeroscience Corp., Plaze, Inc., PLZ Holdings, Inc., K-G Spray-Pak, Inc. (who
assembled the can and filled it with Flex Seal), Swift Response, LLC (who designed
and sold the Flex Seal), and Ball Corp. This Court previously granted Beckum’s
motion to nonsuit Lowe’s without prejudice, and Beckum later settled with PLZ
Aeroscience Corp., Plaze, Inc., PLZ Holdings, Inc., K-G Spray-Pak, Inc., and Swift
Response, LLC.
During discovery and after limitations had run, Ball Corp. disclosed that a
separate corporate entity—Ball Metalpack—had designed and manufactured the
Flex Seal can.
Because of these rulings, the Court DISMISSES AS MOOT the motion to designate a
responsible third party and the motion to strike an expert witness.
1
2
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Beckum moved for leave to amend to add Ball Metalpack as a third party after
limitations had run.
And Ball Corp. moved to designate Ball Metalpack as a
responsible third party. The parties also filed motions to extend fact discovery and
the motion deadline. In addition, Ball Corp. moved to strike Beckum’s expert witness
and moved for summary judgment on the basis that there is no evidence Ball Corp.
designed or manufactured the can.
II. Law
Summary judgment is appropriate only if, viewing the evidence in the light
most favorable to the non-moving party, “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” 2 “A fact is material if it ‘might affect the outcome of the suit’” and a “factual
dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’” 3
III. Analysis
The Court takes the procedural motions first before turning to the motion for
summary judgment.
A. Motion for Leave to File Amended Complaint
Beckum claims that Ball Corp. disclosed in December 2019 after limitations
had run that one of its subsidiaries, Ball Aerosol and Specialty Container, Inc. n/k/a
Ball Metalpack Aerosol Container, LLC (“Ball Metalpack”) was a responsible third
2
FED. R. CIV. P. 56(a).
Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
3
3
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party. In addition to adding Ball Metalpack as a defendant, Beckum wishes to correct
registered agents and addresses for defendants K-G Spray-Pak, Inc., Plaze, Inc. and
AptarGroup, Inc. to issue corrected citations. Finally, Beckum wishes to amend the
complaint to establish diversity jurisdiction.
Ball Corp. responds that: (1) Beckum cannot substitute Ball Metalpack
because the two entities are not interrelated and Ball Metalpack did not have notice
of this lawsuit; and (2) Rule 15 cannot be used to join an additional defendant. The
Court agrees with Ball Corp.
Federal Rule of Civil Procedure 15 governs this analysis. That rule provides
that in cases such as this, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” 4 Because limitations has run on any new defendant, Beckum’s
effort to join Ball Metalpack is an effort to relate back to the original complaint. Rule
15 provides that:
An amendment to a pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
4
FED. R. CIV. P. 15(A)(2).
4
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summons and complaint, the party to be brought in by
amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party’s identity. 5
“Rule 4(m) provides a 120–day time period in which a defendant must be served after
a complaint is filed, and this 120–day period also applies to Rule 15(c)(1)(C)(i) and
(ii)’s provisions.” 6
Subsections (b) and (c) are at issue here.
Regarding subsection (b), the
proposed claim against Ball Metalpack is substantively the same as the claim in the
original proceeding. Regarding (c), there is no showing from Beckum that: (1) Ball
Metalpack received notice of the lawsuit; (2) Ball Metalpack won’t be prejudiced by
its late addition; (3) Ball Metalpack knew or should have known that the action would
have been brought against it but for a mistake in the proper party’s identity; or
(4) Beckum could have served Ball Metalpack with the amended complaint within
120 days of the filing of the original complaint. Moreover, Ball Corporation’s response
to the motion for leave demonstrates why Beckum cannot making these showings.
As a result, Beckum has not met Rule 15’s standard for an amended complaint that
adds or substitutes a party after limitations has run.
Accordingly, the Court
DENIES the motion.
5
Id. at 15(c)(1).
6
Tapp v. Shaw Envtl., Inc., 401 F. App’x 930, 933 (5th Cir. 2010).
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B. Beckum’s Motion to Extend Discovery
Beckum moved to extend fact discovery, largely arguing that Ball Corp.’s
30(b)(6) witness had inadequate knowledge of the topics to be discussed because Ball
Corp. identified Ball Metalpack after the deadline to amend pleadings. Ball Corp.
responds that Beckum lacked diligence and that testimony from a corporate
representative that others outside the company would be better suited to answer a
question is not good cause to extend discovery. The Court agrees with Ball Corp.
Federal Rule of Civil Procedure16(b)(4) provides that a scheduling order “may
be modified only for good cause and with the judge’s consent.”
A lack of diligence
negates good cause. Here, Beckum learned in December 2019 that Ball Metalpack
designed the can in question. There were six months remaining in discovery at that
point. Beckum did not attempt to serve third-party discovery on Ball Metalpack. And
Beckum did not serve discovery on Ball Corp. until thirty days before discovery
closed. This is not the diligence the Court would expect to justify more time for
discovery.
Moreover, there was nothing remarkable about the Ball Corp. 30(b)(6)
deposition to warrant extending discovery.
It simply confirmed its December
information that Ball Corp. did not make, design, sell, or distribute the can in
question. Considering this information was not new, it is not grounds to extend
discovery. Accordingly, the Court denies Beckum’s motion to extend discovery.
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C. Ball Corp.’s Motion to Extend the Motion Deadline
Ball Corp. moved to extend the motion deadline because an unforeseen medical
condition rendered Beckum’s expert Dr. Dehong Kong unavailable for deposition
until June 8, 2020. This was after the June 5 motion deadline. 7 Ball Corp. requested
the deposition within the original discovery period, but the medical issues prevented
the deposition from occurring then. Four days after that deposition, Ball Corp. sought
leave to file its motions on July 31, two weeks after the extended discovery cutoff.
Beckum responds that Ball Corp.’s advertence is not good cause and would prejudice
Beckum. The Court agrees with Ball Corp. that good cause exists to extend the
motion deadline to accommodate comprehensive motions to strike and for summary
judgment, which did not prejudice Beckum because he responded to those motions.
Federal Rule of Civil Procedure 16(b) states that a scheduling order “shall not
be modified except upon a showing of good cause and by leave of the district judge.”
“The good cause standard requires the party seeking relief to show that the deadlines
cannot reasonably be met despite the diligence of the party needing the extension.” 8
The Fifth Circuit has established a four part test for evaluating good cause for
scheduling order changes: “(1) the explanation for the failure to [timely file a motion];
(2) the importance of the [belatedly filed motion]; (3) potential prejudice in allowing
the [belated motion]; and (4) the availability of a continuance to cure such prejudice.” 9
7 The scheduling order allows the parties to extend the discovery deadline, which they did, but
not the motion deadline.
S&W Enters., L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003)
(quotation marks omitted).
8
9
Id. at 536 (quotation marks omitted).
7
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Those four factors here favor allowing Ball Corp.’s belated motion to strike and
motion for summary judgment. First, Ball Corp.’s explanation is accommodating
Beckum’s expert’s medical condition, which favors extending the motion deadline.
Second, the motions to strike and for summary judgment are important. Indeed, a
dispositive motion such as a motion for summary judgment is often the most
important motion in a case, and this particular motion and ruling bear that out here.
Third, the prejudice a Rule 16 analysis looks to is prejudice in a party like Beckum
responding. But Beckum has already responded to both belated motions. Fourth, no
continuance is needed to cure prejudice to Beckum because there is no prejudice to
Beckum. All four factors favor allowing the late-filed motions. Accordingly, the Court
grants Ball Corp.’s motion to extend the motion deadlines, which renders its motion
to strike and motion for summary judgment timely.
D. Ball Corp.’s Motion for Summary Judgment
This brings us to Ball Corp.’s motion for summary judgment. As base, the
motion contends that there is no evidence that: (1) Ball Corp. is liable for the action
of its (now former) subsidiary in manufacturing and selling the can; (2) the can was
unreasonably dangerous; (3) there was a safer alternative design; (4) the alleged
design defect (a propensity to ignite through electrostatic discharge) was with the can
instead of the mounting cup (a separate component that a non-party supplied and
assembled); (5) the can had a manufacturing defect; (6) Ball Corp. was negligent; or
(7) Ball Corp. was subjectively aware of an extreme degree of risk that could qualify
as gross negligence. Beckum responds that: (1) the motion is untimely, and Ball Corp.
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failed to seek leave; (2) Ball Corp. is liable to the actions of its subsidiary, Ball
Metalpack; (3) there is evidence the can was unreasonably dangerous; (4) there is
evidence of a safer alternative design; (5) there is evidence of a manufacturing defect;
and (6) there is evidence of gross negligence. 10 The Court agrees with Ball Corp. that
there is no evidence of Ball Corp.’s liability (as opposed to non-party Ball Metalpack’s
liability). 11
As an initial matter, Ball Corp. objected to four pieces of evidence Beckum
relies on to attempt to defeat summary judgment. The only objection relevant to this
Court’s analysis is an objection to Ball Corp.’s Rule 30(b)(6) witness testimony about
Ball Metalpack being a former subsidiary of Ball Corp. The basis for the objection is
that the existence of a parent/subsidiary relationship is no evidence (in and of itself)
of the parent’s liability for the subsidiary’s negligence. This is a correct statement of
Texas law. The Texas Supreme Court has held that
Creation of affiliated corporations to limit liability while pursuing
common goals lies firmly within the law and is commonplace. We have
never held corporations liable for each other’s obligations merely
because of centralized control, mutual purposes, and shared finances.
There must also be evidence of abuse, or as we said in Castleberry [v.
Branscum, 721 S.W.2d 270 (Tex. 1986)], injustice and inequity. By
“injustice” and “inequity” we do not mean a subjective perception of
unfairness by an individual judge or juror; rather, these words are used
in Castleberry as shorthand references for the kinds of abuse,
specifically identified, that the corporate structure should not shield—
fraud, evasion of existing obligations, circumvention of statutes,
Beckum also argues there is evidence that the can was the producing and proximate cause
of his injuries. But Ball Corp. did not claim there was a lack of evidence on this point, so the Court
declines to address it as a basis for summary judgment.
10
11
As a result of this ruling, the Court need not reach Ball Corp.’s remaining arguments.
9
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monopolization, criminal conduct, and the like. Such abuse is necessary
before disregarding the existence of a corporation as a separate entity. 12
The Court need not strike this testimony from the summary judgment record,
as Ball Corp. suggests. But the Court need not and does not rely on the fact that Ball
Metalpack was formerly a subsidiary of Ball Corp. as a means to defeat summary
judgment if there is no evidence of abuse, injustice, or inequity.
Having addressed Ball’s Corp.’s objections to Beckum’s evidence, the Court
turns to Beckum’s response that Ball Corp.’s motion for summary judgment is
untimely and required leave of court. The Court’s above granting of the motion to
extend the deadline renders the motion for summary judgment timely.
This brings us to the issue of whether there is evidence of Ball Corp.’s liability
(as opposed to Ball Metalpack’s liability). There is no dispute that at the time of the
incident in 2017, Ball Metalpack designed and manufactured the can that caused the
injury and that Ball Metalpack was a subsidiary of Ball Corp. (but no longer is). As
explained above, this is not enough under Texas law to impose the subsidiary’s
liability on the parent. There must be evidence of something akin to “fraud, evasion
of existing obligations, circumvention of statutes, monopolization, [or] criminal
conduct.” 13
Beckum’s only response is that “Ball Corporation’s corporate
representative failed to disclose or even elaborate why Ball Corporation’s relationship
with Ball Metalpack as a subsidiary was severed or discontinued.” 14 Reasons why
12
SSP Partners v. Gladstrong Investments (USA) Corp., 275 S.W.3d 444, 455 (Tex. 2008).
13
Id.
14
[Doc. 145 at 9].
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they severed the corporate relationship is not a basis to disregard the corporate form.
What matters is whether such things as fraud or criminal conduct were occurring at
the time of the injury when Ball Metalpack was a subsidiary that justify disregarding
their corporate form. If Ball Metalpack were still a subsidiary today, Beckum has
still not offered argument or evidence that would qualify to disregard the corporate
form. Because there is no evidence of Ball Corp.’s liability for Beckum’s claims, the
Court grants Ball Corp.’s motion for summary judgment.
IV. Conclusion
For the foregoing reasons, the Court DENIES Beckum’s motion to amend the
complaint, DENIES Beckum’s motion to extend discovery, GRANTS Ball Corp.’s
motion to extend the motion deadlines, and GRANTS Ball Corp.’s motion for
summary judgment.
Accordingly, the Court DISMISSES WITH PREJUDICE
Beckum’s claims against Ball Corp. and will separately issue a final judgment.
IT IS SO ORDERED this 24th day of September 2020.
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
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