Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Preslar v. S.M. Wilson & Co.

December 9, 2008

ORVILLE PRESLAR, PLAINTIFF,
v.
S.M. WILSON & CO., DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
GRS CONSTRUCTION, INC. AND ERIC INSURANCE GROUP, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM and ORDER

In late December 2005, Orville Preslar was injured while working as a custodian. Preslar was cleaning a classroom in a portable building at Columbia Middle School in Monroe County, Illinois. At that time a construction project was underway at the school, with S.M. Wilson & Co. (Wilson) serving as construction manager on the project.

Preslar filed suit in Illinois state court in December 2007, naming Wilson as the sole Defendant. Preslar alleged that his serious injuries -- sustained in falling from the classroom doorway a "significant distance to the ground -- were proximately caused by Wilson's negligence in, inter alia, (a) removing the steps leading to the entrance to the classroom in which Preslar was working, (b) failing to ascertain whether anyone was in the classroom before removing the steps, and (c) failing to warn Preslar that the steps had been removed.

Served with the state court complaint in February 2008, Wilson removed the action to this federal District Court in March 2008, invoking subject matter jurisdiction under the federal diversity statute, 28 U.S.C. § 1332. After ascertaining that the amount in controversy sufficed and that the parties were completely diverse (Preslar is an Illinois citizen; Wilson is a citizen of Delaware and Missouri), the undersigned District Judge tracked the case and set a firm trial date. Magistrate Judge Donald G. Wilkerson then entered a Scheduling Order.

Wilson answered Preslar's complaint on March 13, 2008, and discovery got underway. On August 1, 2008, Defendant Wilson obtained leave to file a third-party complaint against G.R.S. Construction (GRS) and Erie Insurance Group. Wilson's third-party complaint (Doc. 13) identified GRS as the contractor hired to remove the temporary decking between the portable classroom buildings, including the building in which Preslar was working when the stairs were removed (just before Preslar exited the classroom and fell from the doorway).

Wilson seeks to hold GRS liable, inter alia, under the Illinois Joint Tortfeasors Contribution Act (Doc. 13, p. 6): "GRS Construction removed the stairs, and ... if S.M. Wilson could be liable for any of the alleged negligence asserted by plaintiff, then GRS Construction would be liable for the same reasons."

GRS and Erie obtained multiple extensions of time to respond to Wilson's third-party complaint (see Docs. 21, 22, 26, 27), ultimately moving to dismiss it (Docs. 30 and 35). The Court entered a briefing schedule on GRS' and Erie's dismissal motions, with briefs due through November 25, 2008 and December 2, 2008 respectively (Docs. 33, 38).

Before the dismissal motions were fully briefed, Plaintiff Preslar moved for leave to file a first amended complaint and to remand the case to state court (Doc. 43, filed November 14, 2008). GRS and Erie vigorously oppose Preslar's motion in briefs filed December 2, 2008 (see Docs. 54, 55). Additionally, on December 4, 2008, GRS filed a third-party complaint for contribution against Columbia Unit School District 4 (Doc. 57).*fn1

The parties have thoroughly briefed Preslar's motion. The straightforward issue before this Court is whether Preslar should be allowed leave to amend his complaint to add GRS as a Defendant. As to complaint amendments before trial, Federal Rule of Civil Procedure 15(a)(2) instructs: "The court should freely give leave when justice so requires." See also Foster v. DeLuca, 545 F.3d 582, 583-84 (7th Cir. 2008)(Rule 15(a) "dictates that leave to amend a pleading shall be freely given 'when justice so requires'"...). In the case at bar, the balance tips in favor of permitting amendment.

Initially, the Court notes that Preslar has not sought amendment before now (this would be his First Amended Complaint). See, e.g., Airborne Beepers & Video, Inc. v. AT&T Mobility, LLC, 499 F.3d 663, 666 (7th Cir. 2007)(One reason for denying leave to amend is "repeated failure to cure deficiencies by amendments previously allowed..."). More importantly, the amendment is sought so that Preslar can state a direct cause of action against GRS -- a party whom Preslar did not know of prior to commencing his action, a party whom Preslar only learned of during discovery produced by Wilson, and a party whom Wilson itself brought into this lawsuit via the third-party complaint Wilson was just given leave to file on August 1, 2008.

Stated another way, the pleadings indicate a genuine basis for Preslar's claims against GRS (not a speculative or far-fetched theory of liability against GRS). And although Preslar could have sought the amendment several months before his November 14th motion, the record reveals no bad faith or dilatory conduct by Preslar.

GRS vehemently objects to being added as a direct Defendant by Preslar. Insisting that amendment would be futile, GRS asks this Court to declare Preslar's claims against GRS time-barred under applicable Illinois statutes of limitation. The law of this Circuit recognizes that a Court can exercise discretion to deny leave to amend where the amendment would be utterly futile. See, e.g., Sound of Music Co. v. Minnesota Min. & Mfg. Co., 477 F.3d 910 (7th Cir. 2007). Here, however, the Court is not convinced that amendment would be futile.

First, it is far from clear that all Preslar's claims against GRS would be subject to dismissal based on statutes of limitation. Indeed, there is a question as to whether a two-year or four-year limitation period applies (see 735 ILCS 5/13-202 and 5/13-214).

Second, even assuming that the two-year period governs all possible claims against GRS, to conclude that amendment is futile, the undersigned Judge would also have to find no "relation back" between the filing of the amended complaint and the original complaint and declare that Illinois' "discovery rule" did not postpone the commencement of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.