Opinion
CASE NO. 3:01-cv-371-J-12TEM
March 31, 2003
ORDER
This case came before the Court on February 14, 2003 for a hearing on Defendant's Motion for Leave to Amend Affirmative Defense (Doc. #35), Plaintiffs' Motion to Compel (Doc. #29), all responses thereto (Docs. #33, #36, #39 #40), and the issue of whether privilege or work product applies to the deposition testimony of an accident investigator who is an employee of defendant. The parties were directed during an emergency telephonic hearing on February 6, 2003 to brief all outstanding issues before the undersigned and file supplemental briefs two days prior to the February 14 hearing.
At the onset of the hearing, the parties advised the Court that all matters pertaining to Plaintiff's Motion to Compel and the issue of whether privilege or the work product doctrine applies to the deposition testimony of Defendant's employee accident investigator had been amicably resolved. Thus, the Court deemed those matters moot and heard oral argument only on Defendant's Motion for Leave to Amend Affirmative Defense (Doc. #35) and Plaintiffs' Opposition (Doc. #40).
The record of the February 14, 2003 hearing is hereby incorporated by reference. The non-transcribed recording of that hearing may be found on Tape 03:15TEM at 1239 to end and Tape 03-16TEM 1-304.
Defendant is seeking to amend its Answer to include Clay Electric Cooperative (Clay Electronic) and Charles McKinney, an employee of Clay Electric, as non-parties subject to apportionment of liability under FIa. Stat ch. 768.81(3). Defendant's Clarification of the Motion to Amend (Doc. #36) avers that no new facts have been discovered, but based on an overall evaluation of case that the two new Fabre non-parties should be added.
See, Fabre v. Mann, 623 So.2d 1182 (Fla. 1993) (reversed on other grounds) (affirming Fla. Stat. ch. 768.81 was unambiguous and fault should be apportioned among all potentially liable parties). See also, Nash v. Wells Fargo Guard, 678 So.2d 1262 (Fla. 1996) (holding that in order to include a nonparty on a verdict form, defendants must affirmatively raise the Fabre defense and specifically identify any nonparty).
On July 26, 2001, Judge Melton entered a Case Management and Scheduling Order (Doc. #16, "CMSO") stating that "[m]otions to amend any pleading . . . after issuance of this Case Management and Scheduling Order are disfavored." The Middle District of Florida has held that Fed.R.Civ.P. 15(a) governs motions to amend pleadings filed after the issuance of the scheduling order, when the scheduling order does not set a fixed deadline (emphasis in the original). Perez v. Pavex Corp., 2002 U.S. Dist. Lexis 2187 (M.D. FIa. Oct. 17, 2002). In the instant case, the Motion to Amend was filed fifteen (15) months after the Court had entered a scheduling order which referenced only disfavor of pleading amendments, but did not set a specific deadline. Appropriately in this instance, Defendant's Motion to Amend addresses only the amendment standard set forth under Fed.R.Civ.P. 15(a). Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend a pleading "shall be freely given when justice so requires." FED. R. Civ. P. 15; Foman v. Davis, 371 U.S. 178, 182 (1962). In the language of the Foman Court,
Unlike this case, however, the Court notes Fed.R.Civ.P. 16(b) would initially govern motions to amend pleadings when they are filed after deadlines that are prescribed in the CMSO. Sosa v. Airprint Systems, Inc., 133 F.3d 1417 (11th Cir. 1998); Thorn v. Blue Cross and Blue Shield of Fla. Inc., 192 F.R.D. 308 (M.D. Fla. 2000).
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'
Foman, 371 U.S. at 182.
The Defendant asserts that "as a result of an overall evaluation of the existing evidence and discovery" it should be allowed to add the now specifically identified Fabre non-parties (Doc. #36 at 1-2). Defendant emphasized at the time of the hearing and in its motion that Plaintiffs had early notice of the potential Fabre affirmative defense with the Defendants original answer; therefore, no one should be surprised at this amendment, even at this late date.
Defendant noted at the hearing that its expert's report had been disclosed in June 2002 and it contained the basis of the claim that Clay Electric and McKinney were negligent in this case. Plaintiff, however, noted that although interrogatories previously had asked for information as to the basis of any belief that any other persons were negligent, Defendant had not supplemented its December 5, 2002 answer that had not named any other potentially negligent party, but only indicated an investigation was continuing (Doc. #40 at 2). Even at the hearing, Defendant seemed unable to clearly enunciate his theory of how others were negligent. Defendant promised to supplement interrogatories by the end of the week following the hearing.
Defendant's actions in that regard come close to being dilatory. However, the Foman standard is broad. In this case, there was not a fixed deadline for amendment of pleadings. Trial is not yet set, and the final pretrial conference is still three months away. Further, Defendant had, in fact, placed Plaintiff on some notice of the Fabre defense with its original answer and the June disclosure of the expert report.
Plaintiffs aver they may be prejudiced by the amended answer. If either the supplementation of the interrogatories or a deposition of the expert on this matter raises new issues requiring additional discovery, Plaintiffs may bring an appropriate motion with the Court.
As previously noted, Florida law provides that fault be apportioned among all potentially negligent parties in negligence lawsuits. See Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); Walmart v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996). While the Court notes Defendant could have been more forthcoming about the addition of these Fabre non-parties, the Court can not conclude under the Foman standard that Defendant seeks this amendment for the purpose of delay or any other dilatory motive. As such, it is appropriate to allow the amended answer to include all potential non-party tortfeasors identified by Defendant. Plaintiffs are free to refute such liability by the Fabre non-parties at trial or in summary judgment proceedings.
Thus, having reviewed this case, it is hereby
ORDERED:
1. Plaintiffs' Motion to Compel (Doc. #29) is DEEMED MOOT.
2. Defendant's Motion to Amend for Leave to Amend Affirmative Defense (Doc. #35) is GRANTED.
3. Defendant is directed to file a copy of the Amended Answer with the Clerk of Court in accordance with all applicable Local Rules, and within seven (7) days of this Order. Defendant's Amended Answer shall mirror the proposed Amended Answer received with Defendant's Motion for Leave to Amend Affirmative Defense (Doc. #35).