Little v. Liquid Air Corp.

• Decision Date: 15 January 1992
• Docket Number: No. 90-1807,90-1807
• Citation: 952 F.2d 841
• Parties: Wilma LITTLE and Linda Carter, Mother and Next Friend of Anidra Catrone Carter, Plaintiffs-Appellants, v. LIQUID AIR CORPORATION, Chevron Chemical Company and Victor Manufacturing Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 841

952 F.2d 841

Wilma LITTLE and Linda Carter, Mother and Next Friend of Anidra Catrone Carter, Plaintiffs-Appellants, v. LIQUID AIR CORPORATION, Chevron Chemical Company and Victor Manufacturing Company, Defendants-Appellees.

No. 90-1807.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1992.

Rehearing In Banc Ordered Jan. 28, 1992.

Michael T. Lewis, Pauline S. Lewis, Lewis & Lewis, Clarksdale, Miss., Hollowell & Kelly, Greenville, Miss., for Little and Carter.

John L. Low, IV, Watkins & Eager, Jackson, Miss., for Liquid Air.

Frank W. Hunger, Marian S. Alexander, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for Chevron.

W. Swan Yerger, Gene D. Berry, Heidelberg, Woodliff & Franks, Jackson, Miss., for Victor Mfg.

Appeal from the United States District Court for the Northern District of Mississippi.

Before POLITZ, JOHNSON and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

On motion for rehearing, the prior opinion in this case, 939 F.2d 1293 (5th Cir.1991), is withdrawn, and the following substituted in its place.

Summary judgment is a significant weapon in the arsenal of the district courts, insuring the efficient resolution of claims and defenses that lack genuine issues of material fact. ¹ This procedural device, however, does not permit a district court to resolve factual issues that are properly left to a jury. The plaintiffs in the instant case sought recovery for the wrongful deaths of Marvin Joe Little ("Little") and Charles Carter ("Carter"), who were killed in a tragic gas explosion in the wingtank of a drydocked barge. The district court granted the defendant corporations' motions for summary judgment. Persuaded that summary judgment against the plaintiffs in this case was premature, this Court reverses the judgment of the district court and remands for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Propylene gas, which is sold under the name "Fuel Gas," spreads easily and poses a significant fire hazard. Between January 1987 and July 1988, defendant Chevron Chemical Co. ("Chevron") sold four bulk tank loads of propylene gas to the defendant Liquid Air Corp. ("Liquid Air"). At Liquid Air's request, Chevron odorized each of these bulk tank loads with ethyl mercaptan, a substance that gives propylene gas an odor similar to the smell of rotten eggs. Chevron furnished Liquid Air a Material Safety Data Sheet ("MSDS") that described the propensities of propylene, including its flammability and explosiveness. Among other warnings, the MSDS recited that, in the event of a propylene leak or spill, the area of the leak should be evacuated.

Liquid Air repackaged the propylene it acquired from Chevron and sold it to Mid-South Oxygen Company in Memphis, Tennessee. At the time of this sale, Liquid Air produced its own MSDS that was substantially similar to the MSDS it had received from Chevron. Mid-South Oxygen Company, in turn, sold the propylene container to a welding company, V & G Welding Supply, which resold the container to Mainstream Shipyards in Greenville, Mississippi. V & G Welding Supply supplied Mainstream Shipyards a copy of the Liquid Air MSDS.

On July 8, 1988, Marvin Joe Little and Charles Carter, employees of Mainstream Shipyards, Inc., entered the wingtank of a drydocked barge in Greenville, Mississippi, to make repairs with a cutting torch. Little and Carter were trained, experienced welders. In the wingtank--a watertight compartment below the decks of the barge--Little and Carter discovered a leak in a hose that connected their cutting torch to a container of propylene gas. They requested that a third member of their work detail, Ernest Hughes ("Hughes"), remove the hose and repair the leak. Hughes pulled the cutting torch and the attached hose out of the wingtank.

While Hughes performed the necessary repairs, Little and Carter remained in the wingtank. After a short period of time, the welders could no longer detect the pungent odor that had alerted them to the presence of odorized propylene gas in the air. Carter, assuming that the gas had dissipated, apparently lit a cigarette. The flame ignited the propylene gas in the air. The subsequent explosion blasted Little through a manhole to the deck of the barge, killing him instantly. Carter was severely burned in the explosion and died five days later in a local hospital.

On December 1, 1988, plaintiff Wilma Little filed an original complaint in federal court seeking recovery for the wrongful death of her husband. Plaintiff Linda Carter filed her own original complaint on July 11, 1989. The district court later consolidated the two lawsuits. Both complaints alleged that the defendants Chevron and Liquid Air had failed to warn the respective purchasers of propylene that "nasal fatigue" would affect the continued ability of exposed individuals to smell the gas. In addition, the complaints alleged that the defendant Victor Equipment Co. ("Victor"), manufacturer of the cutting torch that Little and Carter used in the wingtank, had created the dangerous condition that caused the fatal gas leak.

A magistrate judge set January 26, 1990, as the discovery deadline in the cases. The district court, however, permitted limited discovery until June 15, 1990. On June 18, three days later, Chevron filed a motion for summary judgment. Another week later, the plaintiffs filed a motion to amend their complaints to allege that the ethyl mercaptan had oxidized and did not emit a scent that would have alerted Little and Carter to the presence of a flammable gas. All of the defendants filed responses to the plaintiffs' motion to amend, and Liquid Air and Victor filed their own motions for summary judgment.

The magistrate judge denied the plaintiffs' motion to amend their complaints. On September 13, 1990, the district court affirmed the magistrate judge's denial of the motion to amend and, in a separate order, granted all of the defendants' motions for summary judgment.

II. DISCUSSION

On appeal, the plaintiffs raise essentially two arguments. First, they complain that the district court should not have refused to grant their motion to amend their pleadings. Second, they complain that the district court should not have granted the defendants' motions for summary judgment. We address each of these arguments in turn.

A. Motion to Amend

The Federal Rules of Civil Procedure provide that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Leave to amend, however, is by no means automatic. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 667 (5th Cir.1981); Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir.1979), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980). Accordingly, the decision to grant or deny leave to amend lies within the sound discretion of the district court. Guthrie v. J.C. Penney Co., 803 F.2d 202, 210 (5th Cir.1986); Jamieson By and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985). In exercising its discretion, the district court may consider a variety of factors:

undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

In their motions to amend, the plaintiffs attempted to replace their original contention that Carter lit a cigarette because he could no longer smell the presence of propylene gas in the air with a contention that Carter and Little were never aware of the presence of propylene because the odorizing agent had oxidized. If permitted, this amendment would have radically altered the nature of a trial on the merits: the defendants, rather than defend against a complaint that they had failed to warn about "nasal fatigue," would have had to defend against a complaint that the odorizing agent was defective. The amendment that the plaintiffs requested was not merely clerical or corrective. It would have established an entirely new factual basis for the plaintiffs' claims and, consequently, would have required that the parties reopen discovery and alter their trial strategies. "While leave to amend must be freely given, that generous standard is tempered by the necessary power of a district court to manage a case." Shivangi v. Dean Witter Reynolds, Inc., 825 F.2d 885, 890 (5th Cir.1987). The district court reasoned, with no little justification, that it could not effectively manage this case unless it denied the plaintiffs' motion to amend.

The tardiness of the plaintiffs' motion to amend undoubtedly affected the district court's decision to deny the motion. An amendment that a party raises late in the pre-trial life of a lawsuit has a significant tendency to disrupt trial proceedings. Therefore, this Court has determined that if the delay in filing a motion for leave to amend is particularly egregious, the burden shifts to the moving party to demonstrate that the delay was "due to oversight, inadvertence or excusable neglect." Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981). There is little question that the delay in this case was particularly egregious. First, the plaintiffs did not propose their amendment until well over a year after they had instituted their actions and several months after discovery on the actions had effectively terminated. Second, by the time the plaintiffs proposed their amendment, Chevron had already moved for summary judgment. ² Despite the apparent delay, however, the plaintiffs did not attempt to satisfy their burden: they offered no evidence that their delay in filing the motions for leave to amend was excusable or a result of mere oversight.

This Court is unable to conclude that the district court's denial of the plaintiffs' motion was an abuse of discretion. At the late date that the...