United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
Margaret B. Seymour Senior United States District Court Judge
Jennifer Champy (“Plaintiff”) is suing Beazer
Homes Corporation (“Defendant”), Beazer Homes USA
Inc., Beazer Homes - Columbia Division, and Beazer Homes
for negligence, breach of implied warranty, breach of express
warranty, and breach of contract. ECF No. 1-1. Defendant in
turn is suing Sherman Williams Corporation
(“Third-Party Defendant”) to be indemnified and
held harmless for Plaintiff's alleged injuries. ECF No.
7. This matter is currently before the court on two motions:
(1) Third-Party Defendant's motion for summary judgment
(ECF No. 36), and (2) Defendant's motion for leave to
file an amended third-party complaint (ECF No. 39).
Defendant filed a motion for summary judgment on August 12,
2016, asserting that Defendant is unable to produce the
contract stating Third-Party Defendant agreed to indemnify
Defendant, and accordingly cannot prove contractual indemnity
as a matter of law. ECF No. 36. Defendant filed a response on
September 12, 2016, stating the summary judgment motion is
premature as six months remain under the discovery schedule.
ECF No. 40. For the reasons stated below, Third-Party
Defendant's motion for summary judgment is DENIED.
However, Third-Party Defendant may renew its motion for
summary judgment on or after February 1, 2017, should it
chose to do so.
September 9, 2016, Defendant filed a motion for leave to file
an amended third-party complaint. ECF No. 39. Third-Party
Defendant objected to Defendant's motion, arguing that
the scheduling order deadline has passed and Defendant cannot
show “good cause” to permit the amended
complaint. ECF No. 41. For the reasons stated below
Defendant's motion for leave to file an amended
third-party complaint is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
2007, Plaintiff purchased a home at 128 Pennsylvania Court in
Chapin, South Carolina (“128 Pennsylvania Court”)
from Defendant. ECF No. 1-1 ¶ 8. Plaintiff alleges she
repeatedly advised Defendant of pre-existing respiratory
health concerns, and that she needed the newly constructed
home to be free from large amount of dust, dirt, and other
debris. Id. at ¶ 9. Defendant allegedly agreed
and pledged to use care in the construction of
Plaintiff's home. Id. at ¶ 10. After moving
into her new home, Plaintiff began to suffer worsening
respiratory conditions and was admitted to the hospital for
treatment on numerous occasions. Id. at ¶¶
12-13. Plaintiff removed the carpet and discovered large
amounts of dust and debris below the carpet. Id. at
¶ 14. Since removing the carpet and installing hardwood
floors, Plaintiff's respiratory health has substantially
improved. Id. at ¶ 15.
initiated the lawsuit in July 2015. ECF No. 1. Plaintiff
alleges that Defendant was negligent, breached its express
and implied warranty, and breached its contract. ECF No. 1-1.
On October 9, 2015, Defendant filed a third-party complaint
against Third-Party Defendant seeking indemnification. ECF
No. 7 ¶¶ 24-31. Defendant alleged that Third-Party
Defendant was the subcontractor responsible for installing
the carpet for 128 Pennsylvania Court. ECF No. 7 ¶ 28.
Further, Defendant alleges that under the contract,
Third-Party Defendant agreed to “defend, indemnify, and
hold harmless [Defendant] for any and all claims arising out
of [Third-Party Defendant's] work.” Id. at
¶ 29. Third-Party Defendant asserts that Defendant has
been unable to produce the contract; therefore, the court
should grant Third-Party Defendant's motion for summary
judgment. ECF No. 36. Defendant argues that discovery has not
been completed and it is still attempting to locate the
contract. ECF No. 40. The applicable discovery order states
that “[d]iscovery shall be completed no later than
April 24, 2017.” ECF No. 35 at 2.
Third-Party Defendant moved for summary judgment, Defendant
filed a motion for leave to amend the third-party complaint.
ECF No. 39. Defendant sought to add a claim of
“equitable indemnification.” ECF No. 39-1.
Third-Party Defendant opposes the motion on the grounds that
the deadlines to amend pleadings under the scheduling order
has passed and Defendant cannot show “good cause”
to set aside the scheduling order. ECF No. 41 at 2-3. The
scheduling order states that all motions to amend pleadings
must be submitted by January 8, 2016. ECF No. 21. Defendant
filed the pertinent motion on September 9, 2016. ECF No. 39.
Third-Party Defendant's Motion for Summary
Defendant asserts that it is entitled to summary judgment as
a matter of law. The court shall grant summary judgment if
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. Rule 56(a). The
moving party must initially show that there is no genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the movant has made this
showing, the non-moving party must demonstrate specific,
material facts that give rise to a genuine issue.
Id. at 324. The moving party will be entitled to a
judgment as a matter of law if the “nonmoving party has
failed to make a sufficient showing on an essential element
of her case.” Id. at 323.
Third-Party Defendant liable for contractual indemnity, the
Defendant must produce evidence of the contract at issue.
See Stoneledge at Lake Keowee Owners Assn. v. Builders
FirstSource-Southeast Grp., 776 S.E.2d 424 (S.C. Ct.
App. 2015). Further, the physical contract is required under
the Best Evidence Rule, Federal Rules of Evidence Rule 1002,
which requires “an original writing, recording, or
photograph [ ] in order to prove its content unless these
rules or a federal statute provide otherwise.”
Fed.R.Evid. 1002. In Stoneledge, the court held that
“witness testimony without reference to a specific
writing-is inadmissible to prove the contract contained an
indemnity provision.” 776 S.E.2d at 641 (interpreting
South Carolina's similar Best Evidence Rule).
Accordingly, the contract is a vital piece of discovery to
demonstrate Third-Party Defendant's liability.
judgment is only proper “after an adequate time for
discovery.” Id. at 322. The Supreme Court in
Anderson v. Liberty Lobby stated that “summary
judgment [must] be refused where the nonmoving party has not
had the opportunity to discover information that is essential
to his opposition.” 477 U.S. 242, 250 n.5 (1986). The
Celotex Court found there was “adequate
time” for discovery as the action commenced in
September 1980 and the motion for summary judgment was filed
in September 1981. 477 U.S. at 326. In Investors Title
Insurance Company, the court of appeals held that
summary judgment was premature when the plaintiff moved for
summary judgment four weeks after the court entered the
applicable scheduling order and four months before discovery
was to end. Investor Title Ins. Co. v. Bair, 232
F.R.D. 254, 256 (4th Cir. 2005); see also Harrods Ltd. v.
Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.
2002) (finding summary judgment premature where eleven weeks
remained on scheduling order). Here, the third-party
complaint was filed on October 9, 2015, and the motion for
summary judgment filed on September 12, 2016. Defendant has
had well over a year to find its contract with Third-Party
Defendant. However, under the agreed upon scheduling order,
discovery will not be completed until April 24, 2017.
party opposes summary judgment on the grounds that additional
discovery is warranted, the party generally must file an
affidavit under Federal Rules of Civil Procedure Rule 56(d)
that specifies “which aspects of discovery required
more time to complete.” Nguyen v. CNA Corp.,
44 F.3d 234, 242 (4th Cir. 1995). There is “great
weight on the Rule 56(f) affidavit, ” and “the
failure to file an affidavit under Rule 56(f) is itself
sufficient grounds to reject a claim that discovery was
inadequate.”Id. However, when the
“nonmoving party, through no fault of its own, has had
little or no opportunity to conduct discovery, and when
fact-intensive issues, such as intent, are involved, courts
have not always insisted on a Rule 56(f) affidavit if the
nonmoving party has adequately informed the district court
that the motion is premature and that more discovery is
necessary.” Harrods Ltd., 302 F.3d at 244.
Essentially, if the opposition to summary judgment
“serve[s] as the functional equivalent of an affidavit
and the nonmoving party was not lax is pursuing discovery,
” the court may decline to order summary judgment.
Id. at 245. To serve as a functional equivalent, the
nonmoving party should “provide reasonable
‘notification and ...