Opinion
Case No. 00-1389-JAR
January 26, 2004
MEMORANDUM ORDER AND OPINION
This matter comes before the Court on the objection of defendants Hallmark Hall of Fame Productions, Inc. and McGee Street Productions, Inc. (Doc. 171) to the magistrate judge's Memorandum and Order filed August 21, 2003. That order denied defendants' motion to amend the proposed pretrial order to compare the fault of D D Rental (Doc. 168). Defendants object to the magistrate judge's order in three respects: 1) the order denies defendants' substantive right to compare the fault of non-parties, plus defendants' identification of their intent to compare the fault of D D was timely; 2) the order unfairly results in a pretrial order that contains three new claims against defendants-punitive damages, statutory negligence, and multi-employer work site-but which does not contain defendants' response to the new claims, comparative fault of D D; and 3) the order ignores that plaintiff cannot be prejudiced by the identification of the D D comparative fault defense which occurred approximately six weeks after the comparative fault interrogatory supplementation, two years before the case will be tried, and within days after the time plaintiff identified two new substantive claims against defendants. For the reasons set forth below, defendants' objections to the magistrate judge's August 21, 2003 order are overruled.
Standard of Review
With respect to a magistrate judge's order relating to nondispositive pretrial matters, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is "clearly erroneous or contrary to law." However, when the magistrate judge's order denies a motion to amend and a claim or defense is not permitted to be asserted in the case, several courts have found such a ruling to be dispositive and concluded that the district court should review it de novo. Because the magistrate judge's order has the same effect as an order dismissing a defense, the Court concludes that the magistrate judge's decision denying leave to compare the fault of D D in the final pretrial order was a dispositive ruling subject to de novo review.
First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a)).
Pedro v. Armour Swift-Eckrich, 118 F. Supp.2d 1155, 1157 (D. Kan. 2000) (citing Allende Mut. Ins. Co. v. Rutherford, 178 F.R.D. 1, 2 (D. Me. 1998).
Fed.R.Civ.P. 72(b) allows a party to provide specific, written objections to the magistrate judge's order. The rule states that "[t]he district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Background
Plaintiff, a service technician for D D Rental, was severely injured when a Condor Boom cart that he was repairing struck a high voltage power line. Plaintiff alleges that defendants were negligent in parking the cart directly under high voltage power lines and knew or should have known that the power lines could not be seen because of poor lighting conditions. Despite this knowledge, defendants' employees failed to warn plaintiff or his supervisor about the power line hanging approximately twenty-five feet above the Condor Boom. When plaintiff was in the bucket and the boom was extended to test its hydraulic system, plaintiff contacted the power line and was electrocuted, resulting in the amputation of his left arm below the elbow and three fingers on his right hand.
On May 7, 2003, the magistrate judge conducted a final pretrial conference by telephone. Defendants proposed that the final pretrial order contain language that the fault of plaintiff's supervisor, Kelly Brown, and D D Rental should be compared to defendants' fault. Plaintiff objected, arguing that defendants' attempt to compare the fault of Brown and D D Rental was untimely and contrary to defendants' discovery responses. Plaintiff did not object to language stating that his comparative fault is an issue for trial.
The magistrate judge sustained plaintiff's objection, and defendants were not permitted to compare the fault of Brown and D D Rental. The magistrate judge noted that defendants asserted the affirmative defense that plaintiff's injuries "were caused by others not a party to this lawsuit which, pursuant to the Kansas comparative fault statute, bars or diminishes plaintiff's right to recover against this defendant." Plaintiff served Interrogatory No. 8, which requested the name(s) of the person or entity whose fault was being compared and the factual and legal basis upon which defendants based their defense. Despite an order compelling defendants to fully answer Interrogatory No. 8, defendants maintained that the only "other" party whose fault was to be compared was plaintiff. The magistrate judge held that defendants had no less than three opportunities to specify that they were comparing the fault of Brown and D D Rental, yet chose to remain silent, providing only the name of plaintiff and his conduct in response to discovery requests. Defendants failed to disclose the names of Brown and D D Rental at any time during the prolonged discovery and the magistrate judge refused to countenance their belated addition in the final pretrial order.
Defendants moved "to amend the proposed pretrial order," which the magistrate judge construed as a motion to reconsider (Doc. 161). In support of their motion, defendants raised the same objections at issue in the pending objection. The magistrate judge again rejected defendants' arguments and denied the motion (Doc. 168). The final Pretrial Order was entered August 27, 2003 (Doc. 169). Defendants filed Objections to the Magistrate Judge's Order denying their request to compare the fault of D D Rental. Discussion
Although it appears that defendants are not objecting to the magistrate judge's order as it relates to him, the Court's ruling shall also apply to any comparison of fault of Kelly Brown
The court shall freely give plaintiff leave to amend "when justice so requires." Motions to amend are matters of discretion for the trial court. A refusal to grant leave to amend needs to be justified by factors such as futility, undue delay, undue prejudice to the nonmoving party, or bad faith of the moving party. "`Liberality in amendment is important to assure a party a fair opportunity to present his claims and defenses,' but `equal attention should be given to the proposition that there must be an end finally to a particular litigation.'"
Fed.R.Civ.P. 15.
Cuenca v. University of Kansas, 205 F. Supp.2d 1226, 1228 (D. Kan. 2002) (citing Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452, 1462 (10th Cir. 1991)).
Id. (citing Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Id. (citing Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (quotation omitted).
In the Tenth Circuit, a district court may deny leave to amend for untimeliness or undue delay without a showing to prejudice to the opposing party. The Tenth Circuit has often "`found untimeliness alone a sufficient reason to deny leave to amend.'" A district court evaluates the reasons for the delay and assesses whether they amount to excusable neglect. "Untimeliness is sufficient cause for denying leave, especially when the movant offers no adequate explanation for the delay." A district court "may deny leave if the movant `knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint.'" 1. Comparative Fault
See Woolsey, 934 F.2d at 1462; First City Bank, N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1133 (10th Cir. 1987).
Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001) (quoting Viernow v. Euripides Development Corp., 157 F.3d 785, 799 (10th Cir. 1998)).
Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).
Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995) (citing Frank, 3 F.3d at 1365-66).
Id. (quoting Pallottino, 31 F.3d at 1027); see also Parker v. Champion, 148 F.3d 1219, 1222-23 (10th Cir.1998), cert. denied, 525 U.S. 1151 (1999).
Defendants contend that they stated their intention to compare D D Rental's fault at the earliest possible moment, and that it was "impossible" to identify D D Rental until after plaintiff's changes. The comparative fault of another party is an affirmative defense for which defendants bear the burden of proof. The Court agrees with the magistrate judge that similar to any other claim or defense, plaintiff is entitled to discovery concerning this affirmative defense. The Court rejects defendants' suggestion that they are entitled to compare the fault of any party at the time of trial regardless of their discovery responses. Like the magistrate judge, the Court is troubled by the fact that defendants asserted the "comparative fault of others" in their answer and then withheld factual discovery concerning that defense. Like the magistrate judge, the Court is unwilling to allow a party, under the guise of "trial strategy," to withhold discovery concerning an affirmative defense raised in its answer and then reintroduce the defense in the pretrial order.
See, e.g., Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984).
2. Plaintiff's New Theories
Defendants contend that they made a strategic decision not to compare the fault of D D Rental based on plaintiff's complaint, and only changed their strategy after plaintiff was allowed to 1) amend his complaint to add a claim for punitive damages, and 2) include the "multi-employer worksite doctrine" in the final pretrial order. Defendants fail to explain why plaintiff's additional claims have any bearing on defendants' "strategy" not to timely allege the comparative fault of D D Rental.
K.S.A.66-1711.
Defendants continue to ignore the fact that they asserted the comparative fault affirmative defense in their answer and then withheld discovery concerning that defense. The Court agrees with the magistrate judge that defendants based their decision on trial strategy, and must accept the consequences.
3. Prejudice
Defendants contend that plaintiff has never identified any prejudice in allowing a comparison of D D Rental's fault. The Court disagrees. When the question of comparative fault was raised by interrogatory and order compelling an answer, defendants consistently declined to name D D Rental as "other parties" whose fault should be compared, limiting their answer to plaintiff himself. Defendants also failed to set forth any facts showing fault by D D Rental as requested by interrogatory. The Court agrees with the magistrate judge that defendants sat on this information during the discovery process and allowing them to resurrect their affirmative defense in the final pretrial order is prejudicial to plaintiff.
4. Conclusion
Based on its de novo review and considering all relevant evidence of record, the Court overrules defendants' objections and accepts and adopts the magistrate judge's order denying defendants' motion to amend the proposed pretrial order to compare the fault of D D and Brown. IT IS THEREFORE ORDERED that upon the Court's de novo review of the issues and arguments presented, the defendants' objections to the magistrate judge's order (Doc. 171) denying the motion to amend the proposed pretrial order to allow comparison of fault of D D Rental are overruled and the magistrate judge's order is accepted, adopted, and affirmed as the ruling of this Court.
Although defendants have not so moved, the Court notes that pursuant to Fed.R.Civ.P. 16(e), a Pretrial Order may be modified only to prevent manifest injustice. The Court further concludes that defendants have not met their respective burdens of proving the manifest injustice that would otherwise occur if the pretrial order was not amended.
IT IS SO ORDERED.