United States District Court, N.D. Indiana, Fort Wayne Division
OPAL MILLMAN, ERIC POWELL, and LAURY POWELL, on behalf of themselves and all others similarly situated, Plaintiffs,
UNITED TECHNOLOGIES CORPORATION, LEAR CORPORATION EEDS AND INTERIORS, as successor to United Technologies automotive, Inc., ANDREWS DAIRY STORE, INC., L.D. WILLIAMS, INC., CP PRODUCT, LLC successor to Preferred Technical Group, Inc., and LDW DEVELOPMENT, LLC, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
18, 2018, the Plaintiffs filed their Motion for Class
Certification [ECF No. 214] in this environmental
contamination action. On August 15, 2018, Judge Jon E.
DeGuilio issued an opinion in Hostetler denying
class certification in a very similar case. See Hostetler
et al. v. Johnson Controls Inc., et al., No.
3:15-cv-226, ECF No. 343. As the Hostetler case
involved the same Plaintiffs' and Defendants'
counsel, and very similar issues, the Plaintiffs in this
matter filed a Motion to Amend/Correct their Motion to
Certify Class [ECF No. 223]. Some of the Defendants,
specifically United Technologies Corp., CP Product LLC, and
Lear Corp. Eeds and Interiors, filed a Motion in Opposition
and a Response in Opposition [ECF No. 224, 225] to the
Plaintiffs' Motion to Amend; the Plaintiffs replied [ECF
September 21, 2018, additional Defendants, specifically L.D.
Williams, Inc., and LDW Development LLC (“LDW
Defendants”) filed a “Notice of Joinder”
[ECF No. 230]. The Plaintiffs moved to strike, or in the
alternative, for permission to file a sur-reply to address
the additional arguments raised in the Notice of Joinder [ECF
No. 231]. The LDW Defendants responded [ECF No. 232], and the
Plaintiffs replied [ECF No. 233]. The Court denied the
Plaintiffs' Motion to Strike but granted them leave to
file a sur-reply [ECF No. 234], which the Plaintiffs filed on
October 16, 2018 [ECF No. 236].
November 30, 2018, the Court issued an order taking the
Motion to Amend/Correct under advisement. The Court directed
the Defendants to file supplemental briefing on the details
of the prejudice they would suffer if the Plaintiff's
Motion were granted and allowed the Plaintiffs to reply. On
January 4, 2019, the Defendants filed their Response to the
Motion per the Court's Order [ECF No. 243], and on
January 25, 2019, the Plaintiffs filed their Reply [ECF No.
The Plaintiff's Motion to Amend
Plaintiffs' Motion for Class Certification proposed eight
issues for potential certification. In addition to changing
the word “and” to “and/or” in
proposed issues 4 and 5, the Plaintiffs wish to make the
• Edit issues 1 and 2 to focus on each Defendant's
role in creating the contamination at each of two sites;
• Edit proposed issue 6 to focus on the Defendants'
actions with respect to the “potential” for vapor
intrusion from contamination; and
• Strike the original issue 7, which addressed
“reckless indifference, ” and instead ask whether
the Contamination was foreseeable to the Defendants, proposed
issue 3, and whether the Defendants negligently failed to
investigate and remediate the Contamination, proposed issue
See generally Pls.' Mot. to Amend, Ex. 3,
“Redline Version of Rule 23(c)(4) Issues, ” ECF
No. 223-3. The Plaintiffs have emphasized that they do not
seek to alter their Memorandum supporting their Motion for
Class Certification; the Plaintiffs specifically state that
“no additional briefing is proposed.”
Pls.' Mot. to Amend, ¶ 9.
intervening change in the case law is usually enough to
establish good cause, and the Plaintiffs do not ask to
re-open discovery taken up to this point or even to amend
their briefing. The Court finds the Plaintiffs have
established good cause for these minimal changes.
Defendants maintain that the Plaintiffs have not
established good cause for their Motion to Amend, because the
Plaintiffs could have framed the issues as the Motion to
Amend does many months ago. The Defendants make two arguments
from this fact: first, that the Motion is untimely, and
second, that the Motion is a “do-over.” The
Motion is not untimely. The Plaintiffs filed their Motion for
Class Certification on June 18, 2018, in accordance with the
Court's scheduling order. The Hostetler decision
was issued on August 15, 2018; and the Plaintiffs filed their
Motion to Amend on August 24, 2018. The Defendants do not
argue that the nine days between the Hostetler
decision and the Motion's filing are what makes the
Motion untimely; instead, the Defendants include all the
previous time the Plaintiffs had to consider the case. But
the Hostetler decision is the event that triggered
the filing of the Motion to Amend, which seeks to answer
criticisms Judge DeGuilio raised, and thus was only filed
nine days after the relevant court decision.
various cases cited by the Defendants do not suggest
otherwise. None of the cases cited by the Defendant are
directly on point. Some address motions governed by entirely
different rules of civil procedure. See, e.g.,
Moro v. Shell Oil, Inc., 91 F.3d 872, 876 (7th Cir.
2012) (addressing a Motion to Reconsider under Fed.R.Civ.P.
59(e)). Some address entirely different factual scenarios.
See, e.g., Borom v. Town of Merrillville,
No. 2:07 cv 98, 2009 WL 4842830 (N.D. Ind. Dec. 9, 2009)
(addressing both parties' requests for yet further
extensions of time for discovery after the Court informed the
parties it was not amenable to such motions).
closest cases cited by the Defendants are those where the
Plaintiffs sought to change the nature of the case in
question. Throughout their briefing, the Defendants rely
heavily on Chapman, both the district and appellate
decisions. See Chapman v. First Index, Inc., No. 09
C 5555, 2014 WL 3511227 (N.D. Ill. July 16, 2014),
aff'd in part rev'd in part, 796 F.3d 783,
785 (7th Cir. 2015). In Chapman, the district court
evaluated whether the Plaintiff would be allowed to amend his
class definition. 2014 WL 3511227 at *3. The Court concluded
[t]he decision to delay amendment until after the parties and
Court expended time and resources considering Chapman's
initial proposed class definition and theory was a strategic
one. Now that Chapman has not succeeded on his initial
definition, he seeks a second bite at the apple based on a
theory he could have pursued years ago. Such gamesmanship is
not appropriate, particularly where Chapman was aware of the
potential that his class definition was deficient yet spurned
several opportunities to cure that deficiency . . . His delay
and bad faith thus weigh against allowing amendment.
district court went on to deny Chapman leave to file an
amended complaint, in part because the defendant would be
prejudiced. The Seventh Circuit affirmed, noting that:
“no matter how the subject is approached a district
judge has discretion to reject an attempt to remake a suit
more than four years after it began, ” going on to
observe that the Plaintiff had ...