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Millman v. United Technologies Corp.

United States District Court, N.D. Indiana, Fort Wayne Division

March 25, 2019

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.



         On June 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][1] to the Plaintiffs' Motion to Amend; the Plaintiffs replied [ECF No. 228].

         On 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].

         On 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. 244].


         A. The Plaintiff's Motion to Amend

          The 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 following changes:

• 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 7.

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.

         An 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.

         The Defendants[2] 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.

         The 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).

         The 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 that:

[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.

         The 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 ...

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