United States District Court, D. Kansas
JAMES P. O'HARA, Magistrate Judge.
The plaintiff is a boilermaker and tube welder for third-party defendant Piping Equipment Co., Inc. ("Piping"). He brings this diversity action against defendant Sunflower Electric Power Corporation ("Sunflower"), alleging Sunflower's negligence caused plaintiff to be injured while he was working at Sunflower's coal-fired electrical power generation facility in Holcomb, Kansas (the "Plant"). Consistent with discussion during the recent pretrial conference following the close of discovery, the matter is presently before the undersigned U.S. Magistrate Judge, James P. O'Hara, on Sunflower and Piping's motions to amend their answers (ECF docs. 124, 125). Specifically, Sunflower and Piping seek to add language to their exclusive-remedy affirmative defenses to clarify that Sunflower claims to be plaintiff's "statutory employer." Plaintiff opposes the motions, arguing that the proposed amendments are unduly delayed. For the reasons discussed below, the motions are granted.
In or around January 2012, Sunflower contracted with Piping to provide specialized services on the former's equipment at the Plant. In particular, Piping was hired to change out heavy solid baskets in a horizontal air pre-heater. As an employee of Piping, plaintiff helped change out the baskets in the horizontal pre-heater by tube welding, among other skills. During this process, plaintiff was injured when a basket fell on him.
Plaintiff filed a negligence complaint against Sunflower on July 16, 2012. On September 18, 2012, Sunflower filed its answer. In its answer, Sunflower asserted: "By way of further affirmative defense, the defendant states that the plaintiff's cause of action is barred under the exclusive remedy rule and the principle set forth in Herrell v. National Beef Packing Company et al, Supreme Court Case #99, 451." That same day, Sunflower filed its third-party complaint against Piping seeking indemnification for the claims and damages sought by plaintiff. On October 23, 2012, Piping filed its answer to Sunflower's third-party complaint stating: "To the extent Sunflower suffers any recoverable damage, [Piping] is entitled to setoff/offset to the extent of worker's compensation benefits paid on its behalf to Plaintiff Jesse Stottlemyre, pursuant to K.S.A. § 44-504."
Sunflower filed a motion for summary judgment on October 21, 2014. In its motion, Sunflower argued two separate, but factually related, legal theories. Sunflower asserted that both theories are "based upon the fact that the plaintiff was an employee of the third party defendant, Piping & Equipment Co., Inc. (P & E)., and received workers compensation benefits for his injuries." In the second theory, Sunflower argued that it is the statutory employer of the plaintiff and, therefore, immune from tort liability under the exclusive remedy rule. On October 28, 2014, Piping filed a motion for summary judgment, making the same argument. Piping stated that Sunflower is plaintiff's statutory employer under K.S.A. § 44-503(a), and therefore, his claims are barred by the workers compensation exclusive remedy found at K.S.A. § 44-501b(d).
In response to Sunflower's motion, plaintiff argued that the "statutory employer defense" was not listed in the affirmative defenses included in Sunflower's answer and thus, is not preserved. Therefore, plaintiff asserted that Sunflower had waived that defense and was not entitled to summary judgment on that basis. Similarly, in response to Piping's motion for summary judgment, plaintiff argued that Piping cannot use the statutory employee defense because Sunflower failed to preserve it and it is therefore, waived.
The undersigned held a pretrial conference with the parties on November 20, 2014. During the pretrial conference, Sunflower and Piping sought to clarify Sunflower's assertion of the worker's compensation exclusive remedy defense to plaintiff's claims. The parties agreed that Sunflower and Piping could bring any motion to amend their responsive pleadings, with regard to the workers compensation exclusive remedy defense to plaintiff's claims, no later than December 8, 2014, and the court entered an order to that effect. Consistent with that order, Sunflower and Piping both filed timely motions to amend and clarify their answers regarding the exclusive remedy defense on December 8, 2014. Plaintiff filed his response in opposition on December 15, 2014.
In its proposed amended answer, Sunflower seeks to add language to its exclusive remedy affirmative defense. Specifically, Sunflower moves to add the following phrase (in bold), "By way of further affirmative defense, the defendant states that the plaintiff's cause of action is barred under the exclusive remedy rule because it is the plaintiff's statutory employer under the Kansas Workers Compensation Act and the principle set forth in Herrell v. National Beef Packing Company et al, Supreme Court Case #99, 451." Piping maintains that it and Sunflower's exclusive remedy defenses are already sufficient as written but in the event the court determines otherwise, Piping moves to include the affirmative defense of workers compensation exclusive remedy based on Sunflower's status as a statutory employer.
Under Fed.R.Civ.P. 15(a)(2), once a responsive pleading has been filed and twenty-one days have passed, "a party may amend its pleading only with the opposing party's written consent or the court's leave." When the deadline set in the scheduling order for amended pleadings has passed, however, Fed.R.Civ.P. 16(b)(4) may also be implicated. Thus, courts in the District of Kansas determine whether the Rule 16(b)(4) "good cause" standard has been established before proceeding to determine if the more liberal Rule 15(a) standard has been satisfied. In this case, the scheduling order set a deadline of February 15, 2013, for amending the pleadings. Because Sunflower and Piping didn't file the instant motions until December 8, 2014, the court will follow this two-step approach in evaluating the proposed amendments.
A. Rule 16(b)(4)
To establish good cause under Rule 16(b)(4), Sunflower and Piping must show that they could not have met the February 15, 2013 scheduling-order deadline for amending their answers even if they had acted with due diligence. "Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Furthermore, the lack of prejudice to the nonmovant does not show "good cause."
In its motion to amend, Sunflower explains that it already raised the exclusive remedy affirmative defense in its original answer. Sunflower asserts that plaintiff did not file pleadings seeking clarification and did not seek clarification in his discovery requests. For the first time and in response to Sunflower's motion for summary judgment, plaintiff alleged Sunflower's defense was ...