ATKINS v. KROGER COMPANY
1:11-cv-00772
S.D. Ind.Mar 28, 2013Background
- This is a civil action for claims arising from the allegedly false arrest of Atkins for theft of flowers at Kroger.
- The Government Defendants—City of Carmel, Officer Gilbert, Officer Broadnax, and Sergeant Keith—were named defendants but were dismissed by the Court on January 2, 2013 after summary judgment.
- Kroger seeks to amend its answer to add the Government Defendants as nonparties to allocate fault under Indiana’s comparative fault statute.
- Kroger did not respond to the Government Defendants’ summary judgment motion nor object to their dismissal.
- Discovery is closed, the case is near trial, and the Court must balance Rule 15 liberal amendment with futility and preservation requirements.
- The Court denies Kroger’s Motion for Leave to Amend Answer to Add Non-Parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether amendment is permissible under Rule 15 and Indiana nonparty defense. | Kroger argues liberal Rule 15 standard applies and allows amendment. | Court should require compliance with Indiana nonparty defense under I.C. 34-4-33-10. | Both standards must be satisfied; amendment denied for futility. |
| Whether Kroger preserved the nonparty defense given dismissal of Government Defendants. | Kroger filed within 60 days of dismissal as preservation. | Preservation required actions before dismissal; Kroger did not timely preserve. | Kroger waived the nonparty defense; amendment futile. |
Key Cases Cited
- Hukic v. Aurora Loan Services, 588 F.3d 420 (7th Cir. 2009) (undue delay or prejudice and futility considerations for amendments)
- Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind. 2001) (preservation steps before dismissal; timing matters for nonparty defense)
- Rausch v. Reinhold, 716 N.E.2d 993 (Ind. Ct. App. 1999) (defendant must preserve nonparty defense prior to dismissal)
- Kelly v. Bennett, 792 N.E.2d 584 (Ind. Ct. App. 2003) (reasonable promptness governs time between service and asserting defense)
- Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854 (7th Cir. 2001) (futility standard governs denial of amendment)