Opinion
Case No. 2:00 cv 970 PGC
May 12, 2003
ORDER RESOLVING OUTSTANDING MOTIONS
Before the court are various motions. Having carefully reviewed all the pleadings the court determines that oral argument would not be helpful and rules as follows,
Procedural History
Plaintiff, Jill Hitt is a paraplegic due to a prior accident. On November 2, 1998, Ms. Hitt stayed at the Airport Hilton, and alleges that she was burned severely in the hotel's hot tub by an underwater light. Ms. Hitt filed the initial complaint in this case on October 31, 2000. Defendants Bristol Hotels and Felcor Lodging ("Hotel defendants") removed the case to federal district court under diversity jurisdiction. This case was transferred to this court in July 2002. On November 1, 2002, Ms. Hitt filed a second complaint, involving the same incident, against various lighting manufacturers. In February 2002, this court ruled on outstanding discovery issues, and set a new scheduling order, on Ms. Hitt's first complaint. On April 28, 2003 the second case was transferred to this court, and the cases were consolidated pursuant to Fed.R.Civ.P. 42(a), and DUCivR 42-1.
Motion to dismiss pursuant to 12(b)(6) and Motion to file 1st Amended Complaint
Defendants National Service, Acuity Lighting Group, Acuity Brands, Hydrel (by special appearance), and Lithonia Lighting ("Light Fixture defendants") filed a motion to dismiss Ms. Rift's second case pursuant to Rule 12(b)(6) for failure to state a claim on March 3, 2003. Sta-Rite, filed a motion for joinder in this motion on April 2, 2003. The court grants this motion for joinder. Ms. Hitt responded with a motion to file a first amended complaint.
In their 12(b)(6) motion and their objections to the amended complaint, the Light Fixture defendants argue that Ms. Hitt's complaint violates the two-year statute of limitations for product liability cases, and that Ms. Hitt failed to properly state her claims. In response, Ms. Hitt redrafted her complaint to allege claims based in negligence, meeting the statute of limitations concerns.
The Light Fixture defendants responded that this amended complaint was made in bad faith and the amendments were futile. The Light Fixture defendants argue that because Ms. Hitt should have known of the lighting companies existence prior to the filing of the amended pleadings, the 1st Amended complaint was filed in bad faith. This however ignores the fact that Bristol Hotels and Felcor ("Hotel defendants") did not answer their interrogatories on the name of the manufacturer or distributor of the light fixture in question until December 2002. The Light Fixture defendants also imply in their briefs that Ms. Hitt removed this case to federal court, when in fact it was the Hotel defendants who removed the case. Ms. Hitt filed a timely first amended complaint in response to the discovery she received in this case. She met the applicable statute of limitations, and the court finds no evidence of bad faith.
See H.E. Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir. 1993).
The Light Fixture defendants further argue that the court should not allow the amended complaint, because any amendments would be futile. Accordingly, they argue, the complaint should be dismissed pursuant to Rule 12(b)(6). The futility question is the functional equivalent of whether a complaint may be dismissed for failure to state a claim. Under Rule 12(b)(6), the court accepts as true all well-pleaded factual allegations in the amended complaint, and those allegations are viewed in the light most favorable to the nonmoving party. The Light Fixture defendants argue that, based on an unopposed affidavit from an individual at Hydrel denying liability, this court should dismiss this case. Ms. Hitt properly alleged, based on the responses to discovery she received, claims based on negligence. Though to ultimately succeed on her claims Ms. Hitt must clear some hurdles, at this time the court must accept as true the facts as plead in the complaint. The Light Fixture defendants' arguments are more properly raised at the summary judgment stage, and their motion to dismiss will therefore be denied.
See Gohier v. Enright, 196 F.3d 1216 (10th Cir. 1999).
Id. at 1218.
See County of Santa Fe, NM, v. Public Service Co. of New Mexico, 311 F.3d 1031, 1034 (10th Cir. 2002) citing Sutton v. Utah State School for the Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
See Alder v. Bayer Corporation, 61 P.3d 1068 (Utah 2002); see also Restatement § 389 of Torts.
Motion to Strike Reply Brief
In light of the court's ruling to allow the filing of the amended petition this motion is denied.
Sta-Rite Motion to Dismiss for lack of jurisdiction
In light of the court's ruling to allow the amended complaint, Sta-Rite's motion to dismiss is denied. The consolidation of the two complaints together further resolves the jurisdictional issues.
Motion to Compel Response to Discovery Requests and Inspection of Tangible Items
Ms. Hitt has filed a motion to allow for examination of the subject hot tub, light bulb and light fixture. Understandably the Hotel defendants seek to have the Lighting defendants present when this inspection occurs. The court orders the defendants to provide for inspection of the tub before at mutually agreeably time before June 15, 2003.
The court notes that Hydrel filed their motions under a "special appearance." However, the Light Fixture defendants have been at best, unclear (and, at worse, arguably uncooperative) in providing the proper information to resolve who are the proper parties to this suit. Ms. Hitt has expressed a willingness to dismiss the defendants who are not properly named. The court orders the remaining defendants provide Ms. Hitt with the appropriate information to properly complete service and determine who are the proper parties to this proceeding. To facilitate this, the court grants Ms. Hitt's motion to compel and orders the information sought in the interrogatories to be provided by June 15, 2003. New Scheduling Order
The Light Fixture defendants opposed joinder of these two cases due to the May 1, 2003 fact discovery cut-off date. Currently this case now has a first amended complaint, and a second amended complaint. Now that these cases have been joined the court allows Ms. Hitt one final opportunity to amend her complaint. The court acknowledges its last scheduling order was expected to remain rigidly in place. That expectation, however, rested on the posture of the case at that time. It is clear the two consolidated cases revolve around a single incident, on a single date, and all of the defendants should be involved in its resolution in a single case. A new scheduling order for the single consolidated cases is therefore plainly appropriate. Therefore, the parties are directed to confer pursuant to Fed.R.Civ.Pro. 16 and file a scheduling order with this court that satisfies the following deadlines:
1. Final Amended Complaint — May 31, 2003;
2. Inspection of the hot tub and completion Ms. Hitt's existing interrogatories — no later than June 15, 2003 (Note: discovery remains open at this time subject to deadline to be established in the new scheduling order); and
3. Trial date — May 24, 2004.
All prior deadlines are vacated. A new scheduling order must be filed by June 8, 2003.
CONCLUSION
The court GRANTS Ms. Hitt's motion to file a first Amended complaint (. The court GRANTS Sta-Rite's motion for joinder to the National Service motion to dismiss. The court DENIES the National Service motion to dismiss. The court DENIES National Service's motion to strike Plaintiff's reply brief The court DENIES Sta-Rites motion to dismiss for lack of jurisdiction. The court GRANTS Ms. Hitt's motion to compel discovery requests, for inspection of tangible items, and for entry upon land for inspection. (#78-1 and #83-1). The court GRANTS Ms. Hitt's motion to extend time for fact discovery, and sets the above new scheduling order. (#80-1). The court DENIES defendant Lithonia Lightings motion to strike Ms. Hitt's motion to amend her complaint and opposition to defendant's motion to dismiss. (85-1).SO ORDERED.