United States District Court, S.D. Indiana, New Albany Division
ORDER ON MOTION TO RECONSIDER (DKT. 28)
Debra
McVicker Lynch United States Magistrate Judge
Plaintiff
Farm Bureau Insurance asks the court to reconsider its order
(Dkt. 26) granting defendant Electrolux Home Products an
extension of the deadline prescribed in section IV.B. of the
case management plan to file its “statement of claims
and defenses.” The court grants the motion to
reconsider only to clarify the purpose and effect of section
IV.B., which both parties misapprehend.
The
court entered a case management plan in this case on April
25, 2019. Among other things, the CMP set a deadline of July
12, 2019, for motions for leave to amend the pleadings and a
deadline of November 19, 2019, for the parties to file their
statements of claims and defenses (for short here,
“Statement”). Citing the need for expert reports
to inform and refine its Statement, Electrolux asked the
court to extend the Statement deadline until after expert
disclosures (due in February and March 2020) to April 15,
2020. The court granted that motion before the time afforded
for a response expired.[1]
In its
motion to reconsider, Farm Bureau asserts that it will be
prejudiced by this extension because it will allow Electrolux
until April 15, 2020, to assert nonparty defenses-two days
after the statute of limitations will run-thus preventing
Farm Bureau from naming such a nonparty. Electrolux
apparently agrees with Farm Bureau's assessment of the
effect of this deadline and suggests that if Farm Bureau
believes it ought to name another defendant, it can go ahead
and do so without waiting for Electrolux's Statement.
(See Dkt. 30, ¶ 10.)
Both
parties' arguments spring from the erroneous premise that
section IV.B. of the CMP supplants the deadline for motions
to amend the pleadings and the requirements of Ind.
Code § 34-51-2-16, [2] which prescribes the time by which a
defendant must plead a nonparty defense.
Section
IV.B. of the court's uniform case management plan was
added a few years ago to require the parties-after the
completion of liability discovery and before the filing of
any summary judgment motions-to state with specificity what
claims and defenses they continue to assert, thus requiring
counsel to focus on and refine claims and defenses for
purposes of determining the propriety and breadth of summary
judgment practice. Certainly nothing in that provision makes
that Statement a “pleading, ” which is what's
required under Ind. Code § 34-51-2-16 to identify a
nonparty for purposes of the Comparative Fault Act. And
nothing in section IV.B. of the CMP suggests that the
deadline for leave to amend the pleadings is anything other
than that clearly specified by section III.D. of the
CMP.[3]
Ind.
Code § 34-51-2-16 provides, in the part relevant here,
that a nonparty defense not known to the defendant at the
time of its original answer must be pled “with
reasonable promptness.” It further provides, however,
that if the defendant was served with a complaint and summons
more than 150 days before the expiration of the statute of
limitations applicable to a nonparty, the defendant must
plead any nonparty defense no later than 45 days before the
expiration of that limitations period.
The
court is puzzled that the parties seem to believe that the
court has overridden these statutory timing provisions with
the CMP's Statement requirement. First, as noted above,
the Statement is not a pleading. Pleadings are limited to the
documents referenced in Fed.R.Civ.P. 7(a). Moreover, though
the statute permits a court to alter these time limitations,
a court must do so only in a manner consistent with giving
the defendant a reasonable opportunity to discover a nonparty
defense and giving the claimant a reasonable
opportunity to add the nonparty as an additional defendant
before the applicable limitations period expires. Even if the
court were willing to alter the statutory timeframe-and to be
clear, it hasn't-it would have to adopt a
deadline that would give Farm Bureau a reasonable time to add
any nonparty identified by Electrolux.
According
to the docket, Electrolux was served around February 13,
2019- well in excess of 150 days preceding expiration of the
statute of limitations. That means (a) it must act with
reasonable promptness to plead a nonparty, but (b) in no
event can it do so later than 45 days before expiration of
the applicable limitations period. The court also wants to be
clear that the mere act of complying with a CMP deadline for
serving expert disclosures or for seeking leave to amend an
answer does not establish the “reasonable
promptness” requirement of the statute. As this court
and other Indiana courts have explained, a defendant's
diligence is measured from the time it is served with the
complaint. “From that point forward, a defendant is
expected to investigate and take steps, through discovery or
otherwise, to determine the existence of a nonparty
defense.” Kline v. Gemini Transport, LLC, 2017
WL 784691 at *3 (S.D. Ind. March 1, 2017) (citing cases).
The
need to consult with experts in order to discover and
identify nonparties may, of course, have an impact on what
will be deemed “reasonable promptness.” But,
again, that does not mean that the court's deadline for
serving an expert report is the presumptive “reasonable
promptness.” For one thing, by the time Electrolux
serves its expert report, it will have likely been aware for
some time that its expert will point to another cause. Beyond
that, the statute required Electrolux, upon service of the
complaint, to get about the task of determining any
nonparties it believes caused the loss at issue. It cannot
hide behind an expert disclosure deadline and certainly
cannot rely on the Statement requirement in the
CMP.[4]
The
motion to reconsider is GRANTED as set forth in this order.
The deadline for the parties to file their Statements remains
April 15, 2020. That deadline, however, in no way affects any
timeliness requirements established by Ind. Code §
34-51-2-16.
So
ORDERED.
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