103 Investors I, L.P. v. Square D Co.

• Decision Date: 30 August 2002
• Docket Number: No. CIV.A. 01-2504-KHV.,CIV.A. 01-2504-KHV.
• Citation: 222 F.Supp.2d 1263
• Parties: 103 INVESTORS I, L.P., Plaintiff, v. SQUARE D COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

222 F.Supp.2d 1263

103 INVESTORS I, L.P., Plaintiff, v. SQUARE D COMPANY, Defendant.

No. CIV.A. 01-2504-KHV.

United States District Court, D. Kansas.

August 30, 2002.

David R. Buchanan, Michael A. Childs, Andrew J. Nantz, Brown & James, P.C., Kansas City, MO, for Plaintiff.

Thomas N. Sterchi, James S. Kreamer, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, Christopher J. Stucky, Baker, Sterchi, Cowden & Rice, L.L.C., Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

103 Investors I, L.P. alleges that Square D Company, which manufactures electrical distribution systems, is liable for a building fire caused when one of its products malfunctioned. Plaintiff proceeds under theories of negligence and strict liability. This matter is before the Court on Defendant's Motion To Exclude The Testimony Of Plaintiff's Experts Carl Martin and Byron W. Sherman And Corresponding Motion For Summary Judgment (Doc. # 30) filed June 3, 2002 and Plaintiff's Motion For Leave To Amend Scheduling Order, Amend Complaint, To [sic] Join Additional Party Defendant, Stay Pending Discovery, And Remand Case To State Court, Or In The Alternative Dismiss Without Prejudice (Doc. # 41) filed June 25, 2002. After carefully considering the parties' arguments and authorities, the Court is ready to rule.

Factual Background

Both parties have submitted their Daubert briefs in summary judgment format and neither party has asked for an evidentiary hearing. Although the Court would typically set a hearing in a Daubert matter where facts were disputed, the questions before the Court can be decided on the face of the written reports and summary judgment record. For purposes of determining whether to exclude plaintiff's experts, the Court has deemed the allegations within their reports of February 18, 2002 and March 25, 2002 to be true.

The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.¹

On March 1, 2001, a fire occurred in the electrical room in the second floor of plaintiff's building at 10551 Barkley, Overland Park, Kansas. Plaintiff's building contained "busways," systems of four insulated aluminum bars that serve as conduits for electrical wiring. The bars are enclosed in an aluminum casing and run from the basement to the top floor of plaintiff's building. Busways are commonly used in commercial buildings to distribute electricity to various floors. Defendant manufactured the busways, which another company installed in 1978. Until March 1, 2001, the busways had performed their function without incident. Plaintiff alleges that on that date, however, one of the busways malfunctioned and caused the fire.

Four months later, in July 2001, plaintiff retained Carl Martin to conduct an investigation and evaluation. Except for a small portion of the busway, the contents of the electrical room had been destroyed before plaintiff retained Martin.²

In November 2001, Martin employed Byron W. Sherman to inspect the remaining portion of the busway. Using a fluoroscope, Sherman conducted a non-destructive inspection of part of the busway. Sherman did not observe any deterioration or contamination in the busway system, but he found a failure of the insulation in the busway and some metallic substance in the inner busbars.³ Sherman has no opinion regarding what caused the insulation to fail, or whether any warning, design or manufacturing defects were present.

On February 18, 2002, Martin and Sherman prepared a joint expert report. On March 25, 2002, Martin prepared his own expert report, which states that "the fire and heat damage depicted in the fire scene photographs emanated from the inner bus bars of the bus duct located in the corner of the equipment room." March 25, 2002 Expert Report (Exhibit D) in Defendant's Summary Judgment Motion (Doc. # 30) at S-3. Martin's report states that contaminants inside the busway insulation caused a short circuit, which in turn caused the fire. The report states that Martin found contaminants in the busway insulation, but it does not state what the contaminants were composed of, how or when they got in the busway system, or who allowed them to do so. In his reports and at his deposition, Martin stated that the contaminants looked like whitish particles and aluminum or metallic balls and very thin flakes.⁴

Neither report contains any conclusion or opinion regarding failure to warn, or the design or manufacture of the busway system.⁵,⁶ In determining that the fire started in the corner of the room where the busway was located, Martin relied on general information from maintenance personnel, and information and photographs of a portion of the room where the fire started.⁷ In concluding that the fire originated inside the busway, Martin relied on photographs of the burn patterns, calcination of the drywall, burn patterns in the electrical supply closet, and the damaged condition of the busway.

On September 19, 2001, plaintiff filed suit in the District Court of Johnson County, Kansas, asserting theories of negligence and strict liability based on a manufacturing defect and failure to warn.⁸ On October 18, 2001, defendant removed the case to federal court. Defendant now seeks summary judgment, alleging that plaintiff lacks admissible expert testimony and that it is therefore entitled to summary judgment. Plaintiff insists that its expert reports are sufficient and asks the Court to withhold ruling on defendant's summary judgment motion and allow it to amend its complaint to add an additional defendant. Because the proposed amendment would deprive the Court of diversity jurisdiction, plaintiff also asks the Court to remand the case to state court in Johnson County, Kansas, where it might be consolidated with another case between the parties which is pending there.

Analysis

I. Plaintiff's Motions

On April 4, 2002, the Court entered an Amended Scheduling Order (Doc. # 16) which stated that any motion for leave to join additional parties or otherwise amend the pleadings was due May 1, 2002. Eight weeks past that date, on June 25, 2002, plaintiff filed a motion to amend its complaint to add Central Maintenance Systems Inc. as a defendant. Plaintiff asks the Court to amend the scheduling order so that its late motion to add the new defendant will become timely. Because both plaintiff and Central Maintenance Systems are Kansas corporations, joinder will destroy the Court's diversity jurisdiction. See 28 U.S.C. § 1447(e) ("If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court."); Stubbs v. Kline, No. 97-2133 JWL, 1998 WL 295598, at *2 (D.Kan. May 20, 1998) (case remanded to state court due to joinder of non-diverse defendants). Plaintiff therefore asks the Court to remand the case to state court, where plaintiff and defendant are involved in other litigation regarding this fire. If the Court denies the motion to add Central Maintenance Systems, plaintiff seeks leave to dismiss without prejudice. Defendant opposes every aspect of plaintiff's motion.

On July 31, 2002, after plaintiff filed its motion to amend the scheduling order, the Court entered the Pretrial Order (Doc. # 52) in this matter. At the time he drafted the pretrial order and presided over the pretrial conference, Magistrate Judge James P. O'Hara declined to rule on plaintiff's motion to amend the scheduling order because it was bundled with a potentially dispositive motion to dismiss. See D. Kan. Rule 72.1.1(c) (magistrate may rule on nondispositive pretrial matters). The pretrial order now supercedes all pleadings, however, and it controls the subsequent course of the case. See Metzger v. City Of Leawood, 144 F.Supp.2d 1225, 1258 (D.Kan.2001) (citing Steil v. Humana Kansas City, Inc., 124 F.Supp.2d 660, 665 (D.Kan.2000)); Fed.R.Civ.P. 16(e); and D. Kan. Rule 16.2(c).

Under Rule 16(e) of the Federal Rules of Civil Procedure, the pretrial order "shall be modified only to prevent manifest injustice." Fed.R.Civ.P. 16(e); Burnette v. Dresser Indus., Inc., 849 F.2d 1277, 1282 (10th Cir.1988). The decision to modify the pretrial order is within the trial court's discretion. See id. Amendment is proper if the moving party shows that by exercise of diligence, "the facts on which it bases its motion did not exist or could not be synthesized before" the pretrial order deadline. Masek Distrib., Inc. v. First State Bank & Trust Co., 908 F.Supp. 856, 858 (D.Kan.1995); see Joseph Mfg. Co., Inc. v. Olympic Fire Corp., 986 F.2d 416, 419 (10th Cir.1993). "[T]he burden of demonstrating manifest injustice falls upon the party moving for modification." Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir.2000) (citation omitted). A motion to amend the pretrial order is committed to the Court's sound discretion. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1236 (10th Cir.2000). Factors relevant in the exercise of that discretion include: "(1) prejudice or surprise to the party opposing trial of the issue; (2) the ability of that party to cure any prejudice; (3) disruption to the orderly and efficient trial of the case by inclusion of the new issue; and (4) bad faith by the party seeking to modify the order." Koch, 203 F.3d at 1222 (citations omitted).

Before plaintiff filed its motion to amend the scheduling order and/or the pretrial order, defendant filed both a summary judgment motion and motion in limin e under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Defendant would be prejudiced if the pretrial order were amended at this late date to allow motions to amend the complaint and joinder of parties. See Eads ex rel. Eads v. Unified Sch. Dist. No. 289, Franklin County, Kan., 184 F.Supp.2d 1122, 1130 (D.Kan.2002) (defendant prejudiced when it...