Sherman v. Winco Fireworks, Inc.

Decision Date03 July 2008
Docket NumberNo. 07-2267.,No. 07-2393.,07-2267.,07-2393.
Citation532 F.3d 709
PartiesMargaret SHERMAN; Richard Sherman, Appellants/Cross-Appellees, v. WINCO FIREWORKS, INC.; Winco Fireworks International, LLC., Appellees/Cross-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Michael F. Coyle, argued, David J. Stubstad and Patrick S. Cooper, on the brief, Omaha, NE, for appellant.

Mark J. Daly, argued, Scott E. Daniel and MaryBeth Frankman, on the brief, Omaha, NE, for appellee.

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.

[PUBLISHED]

HANSEN, Circuit Judge.

Margaret and Richard Sherman appeal the district court's grant of Winco Fireworks, Inc.'s motion to amend its answer, which allowed Winco to plead an affirmative federal-law preemption defense more than seventeen months after the deadline for amending pleadings. The Shermans also challenge the district court's exclusion of expert testimony and the district court's failure to give several jury instructions. On cross-appeal, Winco challenges the district court's attorney's fees award. We reverse the district court order granting Winco leave to amend and remand for a new trial on the Shermans' failure-to-warn claim in addition to Mr. Sherman's pendent consortium claim. We do not reach the district court's exclusion of expert testimony, and we affirm on the jury-instruction issues. Finally, we reverse, in part, the district court's attorney's fees award.

I.

On July 3, 2002, the Shermans were watching their grandson Nate Kapustka set off fireworks in Mrs. Sherman's daughter's back yard. Nate ignited a "Saturn Missile" that errantly struck and injured Mrs. Sherman's eye. Nate's father, Stanley Kapustka, had purchased the Saturn Missile from Hale Fireworks, Inc., in Nixa, Missouri, prior to the accident. Winco is allegedly the fireworks distributor that sold the Saturn Missile to Hale Fireworks.

On July 2, 2004, the Shermans filed this suit in the District of Nebraska, asserting nine causes of action against several businesses in the fireworks industry allegedly responsible for the manufacture, distribution, and/or sale of the Saturn Missile. The Shermans' nine claims included a Nebraska-law negligent-failure-to-warn claim, among others. In its initial scheduling order, the district court directed the parties to file motions to amend their pleadings by May 6, 2005. A later progression order directed the parties to file motions to amend their pleadings by August 9, 2005. The district court directed the parties to complete discovery and to file motions for summary judgment by December 15, 2006.

On December 15, 2006, Winco filed a motion for summary judgment and argued, for the first time, that the Shermans' negligence and warranty claims-counts two through seven-were label-based claims preempted by the Federal Hazardous Substances Act (FHSA) and FHSA regulations. See 15 U.S.C. § 1261(p)(1) (defining "misbranded hazardous substance"); 16 C.F.R. § 1500.14(b)(7)(xiv) (describing the label required for "[m]issile-type rockets," pursuant to the Consumer Product Safety Commission's authority under 15 U.S.C. § 1262(b) to establish label requirements additional to those mandated by 15 U.S.C. § 1261(p)(1)). On January 22, 2007, more than seventeen months after the August 9, 2005, deadline for amending pleadings, Winco filed a motion for leave to file and serve an amended answer formally pleading this affirmative preemption defense. The district court granted Winco's motion for leave to amend its answer, noting that allowing the amendment was "somewhat prejudicial" and that Winco's delay was "unwarranted." (Shermans' Add. at 10.)1 In an attempt to mitigate the prejudice resulting from the belated amendment, the district court permitted the Shermans to file a supplementary brief on the preemption issue; allowed the Shermans to seek leave to conduct additional discovery; permitted the Shermans to seek relevant time extensions; and invited the Shermans to file a motion for attorney's fees and costs incurred as a result of the belated amendment. The district court subsequently awarded the Shermans $32,019.87 in attorney's fees, costs, and other expenses based on 28 U.S.C. § 1927, which permits the award of fees if an attorney "multiplies the proceedings in any case unreasonably and vexatiously."

In a February 2007 order, the district court addressed Winco's summary-judgment motion and considered Winco's affirmative preemption defense, concluding that only the Shermans' third cause of action for negligent failure to warn was preempted insofar as the Shermans sought to hold Winco to a higher standard of care than the standard established by federal law. See Mattis v. Carlon Elec. Prods., 295 F.3d 856, 862 (8th Cir.2002) (quoting 15 U.S.C. § 1261 note (b)(1)(a)) ("[N]o State ... may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under [§ 1261(p) or § 1262(b)]."). Specifically, the district court concluded that the Saturn Missile's warning label satisfied the requirements of 16 C.F.R. 1500.14(b)(7)(xiv) as a matter of law, but found that genuine issues of material fact remained with respect to whether the firework's warning label complied with the requirements of 15 U.S.C. § 1261(p)(1)(E) (requiring hazardous substances to bear a label including, among other things, "an affirmative statement of the [product's] principal hazard or hazards"). The district court expressly rejected Winco's contention that the preemption defense affected the Shermans' remaining claims, but the district court did dismiss all but four of the nine original causes of action on grounds not challenged on appeal. The following four causes of action remained for trial: (1) negligent failure to use reasonable care to see that goods are safe for intended use; (2) negligent failure to warn (as limited by the district court's preemption ruling); (3) breach of implied warranty of merchantability; and (4) loss of consortium.

Prior to trial, Winco filed a motion in limine to exclude the testimony of the Shermans' expert, Dr. Christine Wood. The district court granted Winco's motion, concluding that Dr. Wood's testimony concerning the development of warning labels would not assist the jury because, as a result of its preemption ruling, "the warnings the Product's label was required to include ha[d] already been developed and stated in the federal regulations." (SA at 18.)

At trial, a jury found for Winco on all four claims, and the district court entered judgment in favor of Winco. The Shermans filed a renewed motion for judgment as a matter of law, or in the alternative, a new trial, which the district court denied. This appeal, and Winco's conditional cross-appeal of the attorney's fees award, followed.

II.

First, we consider the Shermans' argument that the district court erred by applying the wrong standard in ruling on Winco's motion to amend its answer, which was filed well after the Rule 16 scheduling deadline for amending the pleadings. While we review the district court's decision allowing a party to amend a pleading for an abuse of discretion, see Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir.2008) (standard of review), we review whether the district court applied the correct legal standard in exercising that discretion de novo, see Ind. Lumbermens Mut. Ins. Co. v. Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir. 1999) ("Interpreting the Federal Rules of Civil Procedure ... presents a question of law subject to de novo review." (internal marks omitted)).

Winco's belated motion to amend its answer and plead its affirmative preemption defense implicated three different federal rules of civil procedure. First, because preemption is an affirmative defense, see Wuebker v. Wilbur-Ellis Co., 418 F.3d 883, 886 (8th Cir.2005), Rule 8(c) required Winco to plead the preemption defense in its answer. "Generally, failure to plead an affirmative defense results in a waiver of that defense." First Union Nat'l Bank v. Pictet Overseas Trust Corp., 477 F.3d 616, 622 (8th Cir.2007). However, "when an affirmative defense is raised in the trial court in a manner that does not result in unfair surprise, technical failure to comply with Rule 8(c) is not fatal." Id. (internal marks omitted). Here, consistent with governing caselaw, the district court recognized that Rule 8(c) is not an absolute bar to a party's belated attempt to plead an affirmative defense, concluding that Winco had not waived its affirmative preemption defense in this particular case. Because the Shermans do not meaningfully contest this discretionary determination,2 we do not address the district court's Rule 8(c) analysis further.

In addition to Rule 8(c), Winco's motion implicated both Rule 15(a) and Rule 16(b). Rule 15(a) governs the pretrial amendment of pleadings and states that where an amendment is not sought "as a matter of course" — as defined by the Rule — "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). The Rule provides that "[t]he court should freely give leave when justice so requires." Id. But parties do not have an absolute right to amend their pleadings, even under this liberal standard. United States ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir.2005). A district court appropriately denies the movant leave to amend if "there are compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment." Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir.2005) (internal marks omitted).

Rule 16(b), on the other...

To continue reading

Request your trial
779 cases
  • Sorenson v. Minn. Dep't of Human Servs.
    • United States
    • U.S. District Court — District of Minnesota
    • July 31, 2014
    ...Although "parties do not have an absolute right to amend their pleadings, even under this liberal standard," Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008), the Court begins its review "with a presumption of liberality." DeRoche v. All Am. Bottling Corp., 38 F. Supp. 2d......
  • Hunter v. S.D. Dept. of Soc. Servs.
    • United States
    • U.S. District Court — District of South Dakota
    • March 25, 2019
    ...The general rule is that failure to plead an affirmative defense results in waiver of that defense. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 714–15 (8th Cir. 2008). Because the Avera Defendant, including Rochelle, did not plead a qualified immunity defense, they have waived such a de......
  • Magee v. Trs. of the Hamline Univ.
    • United States
    • U.S. District Court — District of Minnesota
    • March 29, 2013
    ...by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir.2008) (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir.2005)). An amendment ......
  • Sacks v. Univ. of Minn.
    • United States
    • U.S. District Court — District of Minnesota
    • April 26, 2022
    ...Fed. R. Civ. P. 15(a)(2). Though this standard is liberal, parties do not have an absolute right to amend. See Sherman v. Winco Fireworks, Inc. , 532 F.3d 709, 715 (8th Cir. 2008). A motion to amend may be denied for "compelling reasons such as undue delay, bad faith, or dilatory motive, re......
  • Request a trial to view additional results
2 books & journal articles
  • Pleading
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 2 - Practice
    • May 1, 2023
    ...counsel from admitting evidence at trial supporting these defenses. See, e.g. , Fed. R. Civ. P. 8(c); Sherman v. Winco Fireworks, Inc. , 532 F.3d 709, 715 (8th Cir. 2008). These defenses include lack of personal jurisdiction, improper venue, insufficiency of process, or insufficiency of ser......
  • Chapter § 2.04 Pre-Suit Investigation and Case Deconstruction
    • United States
    • Full Court Press Emerging Trends in Litigation Management Chapter 2
    • Invalid date
    ...payment, release, res judicata, statute of frauds, statute of limitations, and waiver); see, e.g., Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting First Union Nat’l Bank v. Pictet Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir.2007)) (“Generally, failure to plea......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT