The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING THE MOTION OF DEFENDANT BRIGGS & STRATTON CORPORATION FOR LEAVE TO FILE AN AMENDED ANSWER STATING A CROSS-CLAIM AGAINST CO-DEFENDANTS DAPCO INDUSTRIES AND WALBRO CORPORATION
ORDER DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANT DAPCO (DOC. 156) ORDER CONFIRMING CONTINUANCE OF EXPERT DISCOVERY DEADLINE TO AUGUST 15, 2009
Plaintiffs are proceeding with counsel with a civil action in this Court. The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73(b), and Local Rule 73-301. Pending before the Court are two interrelated motions, one filed by Plaintiff to dismiss Defendant DAPCO Industries (DAPCO), and one filed by Defendant Briggs & Stratton Corporation (B&S) for leave to file an amended answer containing a cross-claim against Co-Defendants Walbro Corporation (Walbro) and DAPCO Industries.
I. Motion for Leave to File an Amended Answer
The instant suit is one for personal injury and property damage to both Plaintiffs based on general negligence and product liability and suffered when a lawnmower which Defendants manufactured and sold was used by Plaintiff Vernon Holmes in August 2005, and resulted in a fire. The action was removed to this Court in September 2006. Defendant Walbro Corporation filed an answer on September 20, 2006, and an amended answer on October 6, 2006; it was granted leave to file an amended answer setting up a previously omitted compulsory counterclaim against Plaintiff Vernon Holmes on January 15, 2008, and did so on January 17, 2008.
Defendant Dapco was added as a defendant to the second amended complaint pursuant to a stipulation filed on April 22, 2008, in which it was recited that Plaintiffs could file a first amended complaint (FAC) to add two new defendants who through discovery provided by Walbro Corporation had been discovered to be manufacturers of component parts of the MTD lawnmower that is the subject of the products liability case. (Doc. 74 p. 1.) It was alleged in the FAC that Dapco negligently designed, manufactured, and distributed the MTD riding lawnmower and was also subject to strict liability. (Doc. 78 pp. 5-6.) These allegations reappeared in the second amended complaint (SAC) filed on July 22, 2008, pursuant to a stipulation to permit correction of the name of another new defendant, Du Pont. (Doc. 86 pp. 4-6.)
Defendant Dapco answered on July 29, 2008, denying the substantive allegations of the SAC on the basis of lack of information and belief, and stating affirmative defenses. (Doc. 89.) A motion for summary judgment brought by Defendant Home Depot USA was denied on November 20, 2008. Defendant Du Pont was dismissed from the action in December 2008 pursuant to the unopposed motion of Plaintiffs. Another summary judgment motion was withdrawn because discovery was still incomplete.
Discovery is ongoing, with a discovery deadline of June 12, 2009; nondispositive motions filing deadline, June 12, 2009; dispositive motions filing deadline by June 26, 2009; pretrial conference, August 20, 2009; jury trial of five to seven weeks, October 5, 2009. (Doc. 145.) Plaintiff's counsel has filed a notice that the trial date conflicts with another set for trial in San Diego County Superior Court for October 2, 2009. (Doc. 176.) However, at the hearing on this motion, Plaintiffs' counsel confirmed that he is not formally seeking a continuance of the trial date.
A motion for determination of good faith settlement was filed by Defendant Home Depot U.S.A., and it is set for hearing on May 8, 2009. In the motion it is asserted that during litigation, it was discovered that the lawnmower was sold by Montgomery Wards, not Home Depot, so Plaintiffs settled with Home Depot for $7,500. (Doc. 172.)
With respect to the pending motions, Plaintiffs move to dismiss Defendant DAPCO Industries pursuant to Fed. R. Civ. P. 41(a)(2), having filed a motion and declaration on February 9, 2009, to which opposition with a declaration were filed by Defendant Briggs and Stratton (B&S) on February 24, 2009.
On March 11, 2009, Defendant B&S filed a motion for leave to amend its answer to add a cross-claim against co-defendant Walbro Engine Management, LLC, and DAPCO Industries, including a memorandum, a declaration of Lawrence A. Margoles with attachments, and a proposed order. Defendants Walbro Corporation and DAPCO Industries filed opposition to the motion for leave to amend on March 31, 2009. On April 10, 2009, Defendant B&S filed a reply and a declaration of Lawrence A. Margoles.
The two motions were reset for hearing on April 17, 2009, when the motions came on regularly for hearing at 9:30 a.m. in Courtroom 7 before the Honorable Sandra M. Snyder, United States Magistrate Judge. Warren Paboojian appeared on behalf of Plaintiffs; Anthony Warburg appeared telephonically on behalf of Defendant MTD; Lawrence Margoles appeared telephonically on behalf of Defendant B&S; Mark Busick appeared for Defendant Walbro; and Toby ...