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Mendez v. Heatwole

May 10, 2010

ORLANDO MENDEZ, PLAINTIFF,
v.
ERVIN HEATWOLE, DEFENDANT.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

OPINION AND ORDER

ON MOTIONS

Four motions are pending:

1. Motion to Compel Discovery by defendant (Doc. 16).

The parties were directed to confer about resolution of the dispute. The dispute was resolved. The sought after discovery has been produced. The motion is DENIED AS MOOT.

2. & 3.Motion to Amend/Correct Complaint and Join Parties by plaintiff (Doc. 19) and First Amended Motion (Doc. 20).

The First Amended Motion (Doc. 20) makes changes in the proposed amended complaint (Doc. 19) as follows: on page 4 in paragraph 13, on page 9 in paragraph 4 , and adds Count Four. Count Four makes allegations against the owner of the pickup being driven by defendant Heatwole. The allegations against Weaver are for failure to be a backseat driver, literally. Plaintiff has supplied no case precedent to support the theory.

The Scheduling Order (Doc. 13) provided that plaintiff's deadline for moving to add parties or amend the pleadings was December 1, 2009. This motion was filed April 12, 2010. The proposed amendment to the complaint would add sixteen new parties to the lawsuit.

Sufficient justification for tardy filing has not been provided. Plaintiff argues the amendments to a pleading should be freely given pursuant to Rule 15. Defendant opposes the motion. As reasons for the late motion plaintiff identifies the need for legal research "to formulate the legal theories of liability to support claims which provide a basis for the First Amended Complaint," low insurance limits and the corresponding need for discovery about potential defendants, and the need for future discovery about the arrangements between the Wisler Mennonite Church and the Associated Milk Producers. Plaintiff asserts additional discovery will also "shed additional light upon the nature and extent of the involvement of the Wesler Mennonite Church in the dairy farm tour." The discovery deadline was March 31, 2010.

This lawsuit is the result of a two pickup head on collision on a dusty gravel road. Plaintiff explains the liability insurance coverage on the driver of the other car is limited to $25,000. No mention is made about the coverage on the car in which he was a passenger. The driver of the pickup in which plaintiff was riding died in the accident. Plaintiff wants to add as defendants the Associated Milk Producers Incorporated, some members of the Wisler Mennonite Church and persons who are on the church's board of directors or trustees. Plaintiff's theory is that the church, located in Indiana, and the Associated Milk Producers made an agreement to inspect land and dairy farms in South Dakota with an eye toward relocating some church members to South Dakota. Some young men from the church made the inspection trip. While on the trip they were driving to a dairy farm in a three pickup caravan on a dusty gravel road. The caravan threw up so much dust that visibility was severely limited causing the driver of the third pickup to collide head on with the pickup in which plaintiff Mendez was a passenger. Plaintiff asserts Associated Milk Producers Incorporated was the guide who failed to warn about the dusty driving conditions, failed to regulate spacing between the vehicles, failed to establish a reasonable rate of speed for the caravan, and failed to use other options for transportation. Plaintiff asserts the church and individual members of the church are vicariously liable for the negligence of the defendant Heatwole. Beyond the conclusory allegation, no information has been provided to demonstrate an agency relationship between the defendant Heatwole and the proposed defendants other than their shared membership in the same church. No case precedent has been furnished in which liability for negligence proximately causing injury was laid upon the lead vehicle in a caravan in similar circumstances. Trial is scheduled to begin June 23, 2010.

This motion is a motion to amend the complaint, as distinguished from a Rule 12 motion to dismiss. Futility can be considered without transforming the motion into a summary judgment motion which would require notice to the parties and an opportunity to provide affidavits. The defense has provided the highway patrol investigation report and transcript of the defendant's deposition. Heatwole's testimony establishes:

* The Church does not own farmland. (Heatwole Dep. Pg. 9.)

* The Church members are independent and own their own estates. (Heatwole Dep. Pg. 9.)

* Any properties are owned by the individual church members and any income from the property goes directly to the owner of the property, ...


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