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Cruz v. Weber-Stephen Products LLC

United States District Court, N.D. Texas, Dallas Division

January 4, 2018

JOSE S. CRUZ and LUCIA CRUZ, Plaintiffs,
v.
WEBER-STEPHEN PRODUCTS, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A FITZWATER, UNITED STATES DISTRICT JUDGE.

         In this personal injury action by plaintiffs Jose S. Cruz (“Jose”) and Lucia Cruz (collectively, “the Cruzes”) against defendant Weber-Stephen Products LLC (“Weber”), a propane gas grill designer and manufacturer, Weber moves for leave to file third-party complaint, or, in the alternative, for leave to designate responsible third parties. For the reasons that follow, the court grants the motion for leave to file third-party complaint, and it denies as moot the alternative motion for leave to designate responsible third parties.

         I

         This lawsuit arises from a fire that occurred while Jose was using a Weber portable propane gas grill. On August 26, 2016 the Cruzes sued Weber, alleging that a design defect in the grill caused the flames that injured Jose. Weber moves for leave to file a third-party complaint against McWane, Inc. (“McWane”), the manufacturer of the propane tank, and four entities related to the AmeriGas brand, which maintained the propane tank: AmeriGas, Inc., AmeriGas Propane, L.P., AmeriGas Propane, Inc., and AmeriGas Propane Parts & Service, Inc.[1]

         Thus far, Weber has had three opportunities to inspect the Cruzes's grill. One of its experts, Jon B. Ver Halen, P.E. (“Ver Halen”), attended the first inspection on January 20, 2016 at the Cruzes's residence. Experts for Amerigas and Manchester Tank, the division of McWane that manufactures the propane tank, as well as Manchester Tank's attorney, were also present for this inspection. On February 23, 2016 a second inspection occurred at the Cruzes's expert's facility. During this inspection, Weber's expert, Aaron J. Jones, P.E., disassembled the grill and tank and conducted a more in-depth review of the grill.[2]Manchester Tank and Amerigas' experts were present as well.

         Between the second and third inspections, the Cruzes filed a second amended complaint on August 24, 2017. This amended complaint contained new theories of liability, [3]which led Weber to request a third inspection on October 12, 2016 to reevaluate the technical issues. At this inspection, Weber's experts, including Ver Halen, examined for the first time the propane tank that supplied fuel to the grill.[4] A leak test revealed a sustained leak related to a defect in the rubber seal in the propane tank. Until this point, neither the Cruzes's nor Weber's experts had reported a defect in the tank. By the time of this discovery, the deadlines to move for leave to join parties and to designate experts had expired.[5]

         Weber designated Ver Halen as an expert on November 13, 2017. Weber moved on November 22, 2017 for leave to file a third-party complaint, or, in the alternative, for leave to designate responsible third parties. The Cruzes oppose the motion and alternative motion.

         II

         The court's amended scheduling order required that the parties move for leave to join other parties by August 7, 2017. Weber's motion is therefore untimely. Accordingly, the court must decide as a threshold question whether Weber has shown good cause to modify the amended scheduling order so that its motion can be filed and considered.

         A

         When, as here, the deadline for seeking leave to join parties has expired, a court considering a motion for leave to join parties must first determine whether to modify the scheduling order under the Fed.R.Civ.P. 16(b)(4) good cause standard. See S & W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 536 (5th Cir. 2003); Am. Tourmaline Fields v. Int'l Paper Co., 1998 WL 874825, at *1 (N.D. Tex. Dec. 7, 1998) (Fitzwater, J.). To meet the good cause standard, Weber must show that, despite its diligence, it could not reasonably have met the scheduling order deadline. See S & W Enters., 315 F.3d at 535.

         “In determining whether the movant has met its burden under Rule 16(b)(4), the court considers four factors: (1) the party's explanation, (2) the importance of the requested relief, (3) potential prejudice in granting the relief, and (4) the availability of a continuance to cure such prejudice.” Cartier v. Egana of Switz. (Am.) Corp., 2009 WL 614820, at *3 (N.D. Tex. Mar. 11, 2009) (Fitzwater, C.J.) (citing S & W Enters., 315 F.3d at 536). The court considers the four factors holistically and “does not mechanically count the number of factors that favor each side.” EEOC v. Serv. Temps., Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct. 13, 2009) (Fitzwater, C.J.), aff'd, 679 F.3d 323 (5th Cir. 2012).

         B

         Considering the four factors holistically, the court concludes that Weber has met the good cause standard of Rule 16(b)(4) for modifying the amended scheduling order.[6] Weber has offered a legitimate explanation for its delay in seeking leave to join parties.[7] If the leaking tank is shown to have been a cause of Jose's injuries, Weber's ability to seek contribution from third parties responsible for the tank is of great importance. Furthermore, the Cruzes have not established why the addition of these third parties affects their ability to recover against Weber. They maintain that the statute of limitations bars their ability to bring direct claims against these third parties. But the addition of third parties has no relation to the Cruzes's decision to forgo asserting direct claims against these parties during the limitations period. The fourth factor also weighs in Weber's favor. The trial date is currently scheduled for the two-week docket ...


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