The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on a number of Motions to Strike by Plaintiff, Macio Tooley (Docs. 40, 42, 45, 47, 59), two Reports & Recommendations ("R&R") by Magistrate Judge Cudmore (Docs. 68 & 83), Motions for Voluntary Dismissal of Counts III and IV of his Amended Complaint by Plaintiff (Doc. 71), and a Motion for Summary Judgment by Defendant Gorbel, Inc. (Docs. 81 & 82).
On December 6, 2007, Plaintiff filed this suit in the Circuit Court of Tazewell County, Illinois, against Washington Group International ("WGI"). WGI removed the case to federal court, and Plaintiff then filed an Amended Complaint, adding as Defendants Cleveland Tramrail and Shepard Niles, and their respective successors in interest. Plaintiff alleges that, while he was working at Caterpillar, Inc., a crane collapsed and struck him. He alleges that WGI and its alleged successor in interest, URS Corporation,*fn1 are liable to him for breach of contract and negligence because it had a contract, to which Plaintiff was allegedly a third-party beneficiary, with Caterpillar to maintain the crane that injured him. Plaintiff also brought claims against the "Shepard Niles Defendants" and the "Gorbel Defendants,"*fn2 which he alleged designed and manufactured different pieces of equipment that Plaintiff was using at the time of his injuries.
On December 17, 2009, WGI filed a Motion for Leave to File a Third-Party Complaint against Caterpillar, Inc., Plaintiff's employer, which was granted by Magistrate Judge Cudmore. (Doc. 84; 12/18/09 Text Order). In the Third-Party Complaint, WGI alleges that if is required to pay a sum of money to Plaintiff, then it is entitled to contribution from Caterpillar for Caterpillar's negligence. (Doc. 86). The Third-Party Complaint against Caterpillar is not at issue in this Order & Opinion.
PLAINTIFF'S MOTIONS FOR VOLUNTARY DISMISSAL OF COUNTS III AND IV
On August 25, 2009, Plaintiff filed Motions for Voluntary Dismissal of Counts III and IV of his Amended Complaint. (Docs. 70 & 71). These Motions would have the effect of dismissing all of the Counts except I and II, and all of the Defendants except Washington Group International and its alleged successor in interest, URS corporation.*fn3 Plaintiff also sought an order from the Court "precluding remaining Defendants.from claiming, arguing, implying or suggesting in any way that the terms of 735 ILCS 5/2-1117 [joint liability for negligence or strict liability] apply, in any way, to the Gorbel Defendants" or to the "Shepard Niles Defendants." (Doc. 70 at 3; Doc. 71 at 3). WGI did not object to the dismissals, but it did object to Plaintiff's additional request precluding it from arguing that the dismissed defendants are jointly liable with it for Plaintiff's injuries.
Magistrate Judge Cudmore submitted an R&R on the Motions for Voluntary Dismissal on December 14, 2009. (Doc. 83). In his R&R, Judge Cudmore found that Plaintiff's request for an order limiting WGI's ability to assert joint liability against the dismissed defendants was "outside the scope of his motions for voluntary dismissal" and "premature." He recommended "that the motions be granted only to the extent that Plaintiff seeks dismissal of counts III and IV and the dismissal of the Defendants sued in those counts."
The parties were notified that failure to object to Judge Cudmore's December 14, 2009 R&R within ten working days after service of the R&R would constitute a waiver of any objections. See 28 U.S.C. § 636(b)(1); see also Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). Objections to the R&R were due by January 4, 2010, and none were made. Therefore, the Court adopts the Report and Recommendation of the Magistrate Judge (Doc. 83) in full. Accordingly, Plaintiff's Motions to Voluntarily Dismiss Counts III and IV (Docs. 70 & 71) are allowed in part and denied in part. Counts III and IV of Plaintiff's Amended Complaint are dismissed without prejudice, as are all Defendants except WGI and its alleged successor in interest URS Corporation.
As noted by Judge Cudmore in his R&R, this disposition also renders moot the other Motions relating to the dismissed defendants: Plaintiff's Motion to Strike Shepard Niles' Fourth and Fifth Affirmative Defenses to Count VI of Plaintiff's Amended Complaint (Doc. 40); his Motion to Strike "Reservations" Shepard Niles Has Interposed to Plaintiff's Amended Complaint (Doc. 42); his Motion to Strike Gorbel, Inc.'s, Affirmative Defense One to Count III and Affirmative Defense Two to Count III of Plaintiff's Amended Complaint (Doc. 45); his Motion to Strike Defendant, Gorbel, Inc.'s, Affirmative Defense Seven to Count III of Plaintiff's Amended Complaint (Doc. 47); and Gorbel, Inc.'s Motions for Summary Judgment. (Doc. 81 & 82). In addition, the portion of Magistrate Judge Cudmore's August 17, 2009 R&R addressing the above-noted Motions is now moot (Doc. 68).
PLAINTIFF'S MOTION TO STRIKE WASHINGTON GROUP INTERNATIONAL,INC.'S, AFFIRMATIVE DEFENSE TWO TO COUNT I AND AFFIRMATIVE DEFENSE FOUR TO COUNT II OF PLAINTIFF'S AMENDED COMPLAINT
On June 8, 2009, WGI filed its Answer and Affirmative Defenses to Plaintiff's Amended Complaint. (Doc. 57). As an Affirmative Defenses to Counts I and II, which allege, respectively, breach of contract and negligence, WGI asserted that, if a contractual relationship between itself and Plaintiff is found,*fn4 such contractual relationship bars Plaintiff's recovery because Plaintiff assumed the risk of operating the crane, which was inherent in the contractual relationship. (Doc. 57 at 4, 6). Plaintiff moved to strike these Affirmative Defenses, arguing that WGI was barred from asserting an assumption of the risk defense in response to the Amended Complaint, as such a defense in response to the original Complaint had been stricken by the Court on Plaintiff's unopposed motion. (Docs. 59 & 60). In the event that the Court did not agree with his primary argument, Plaintiff relied on Federal Rule of Civil Procedure 12(f), arguing that WGI had attempted to misstate Illinois law, in that Illinois law provides that assumption of the risk only reduces recovery (rather than barring it) in Plaintiff's situation. Defendant opposed the Motion to Strike, arguing that because its previously-pled affirmative defense was "arguably insufficient," the Court granted it leave to file an Amended Answer that more properly stated the affirmative defense under Illinois law. (Docs. 61 & 62).
Magistrate Judge Cudmore issued an R&R on August 17, 2009 addressing, inter alia, Plaintiff's Motion to Strike WGI's assertion of assumption of the risk as affirmative defenses to Counts I and II.*fn5 (Doc. 68). Magistrate Judge Cudmore found, first, that the law of the case doctrine did not bar WGI's re-assertion of assumption of the risk in its Amended Answer, as the Amended Answer was different in that it was based on the contractual relationship alleged by Plaintiff. Further, it was inappropriate to strike the defenses at the pleading stage, as the defense is cognizable under Illinois law when based on a contractual relationship. Magistrate Judge Cudmore also noted that Plaintiff had failed to allege the state of incorporation or principal place of business for URS Corporation, and recommended that Plaintiff be ordered to correct this omission.
Plaintiff filed an Objection to the R&R, disputing both of Judge Cudmore's conclusions regarding its Motions to Strike WGI's Affirmative Defenses. (Docs. 73 & 74). WGI opposes this Objection. (Doc. 75). Neither party objected to Judge Cudmore's recommendation that Plaintiff be ordered to correct its omission as to the state of incorporation or principal place of business for URS Corporation, and the Court will therefore adopt that portion of the R&R without further discussion.
First, WGI argues that Plaintiff's Objection was not timely filed. (Doc. 75 at 1-2). Under 28 U.S.C. § 636(b)(1), the parties had ten working days after service of the R&R in which to file objections to it; Judge Cudmore cited this deadline in his R&R.*fn6 (Doc. 68 at 12). Counting from the date of the R&R, August 17, 2009, it would appear that objections were due on August 31, 2009; Plaintiff's Objection was filed on September 3, 2009. However, the docket entry accompanying the R&R states that Objections were due by September 3, 2009. (Doc. 68 Docket Entry). This is because the system for establishing deadlines assumes a three-day period for service. Though electronic filing in most cases ...