Lauren E. Lonergan, BRIGGS & MORGAN, PA, for plaintiff.
Brian D. Steffes, FISHER BREN & SHERIDAN, LLP, 920 Second Avenue South, Suite and Thomas L. Garrity, LAW OFFICES OF JEFFRETY A. MAGNUS, for defendant.
MEMORANDUM OPINION AND ORDER
JOHN R. TUNHEIM, District Judge.
This case arises from the alleged accidental shipment of an unapproved processing ingredient to a poultry company, which resulted in the United States Department of Agriculture requiring the company to destroy some of its poultry. Wenda America, Inc. ("Wenda") shipped the unapproved ingredient to Gold'n Plump Poultry, Inc. ("GNP Poultry"), who processed some poultry with the ingredient before sending the poultry to its corporate affiliate, plaintiff Gold'n Plump Farms Limited Partnership, LLP ("GNP Farms"), for sale to the public. The mistake in shipping allegedly occurred at Wenda's distribution center, Midwest Warehouse & Distribution System, Inc. ("Midwest").
GNP Farms now moves for entry of default judgment against Midwest. Midwest brings a motion for leave to file an answer to GNP Farms' Second Amended Complaint. Because Midwest has established that there is good cause to set aside any entry of default, the Court will deny GNP Farms' motion. Additionally, the Court will allow Midwest to file an answer to the Second Amended Complaint.
I. THE COMPLAINTS
GNP Farms and GNP Poultry commenced this action against Wenda in Stearns County District Court. (Not. of Removal ¶ 1, Dec. 28, 2012, Docket No. 1.) The complaint alleged breach of contract, breach of various warranties, and negligence associated with the erroneous ingredient shipment. (Not. of Removal, Ex. 1.) Wenda removed the action to federal court on December 28, 2012. ( See Not. of Removal.)
On January 3, 2013, GNP Farms, as the sole plaintiff, filed an amended complaint against Wenda alleging breach of contract based on a third party beneficiary theory and the same breach of warranties and negligence claims brought in the original complaint. (First Am. Compl., Jan. 3, 2013, Docket No. 4.) Wenda then filed a third party complaint against GNP Poultry bringing claims for breach of contract and alleging that GNP Poultry was grossly negligent in processing poultry with the erroneously shipped ingredient. (Third Party Compl., Jan. 17, 2013, Docket No. 7.)
During a July 10, 2013 deposition of Edward Borkowski, the president of Midwest, GNP Farms learned that a Midwest employee made certain errors in preparing the shipment at issue. (Aff. of Maren F. Grier, Ex. 4 at 19:21-20:24, Nov. 20, 2013, Docket No. 81.) In light of this information, fourth party plaintiff GNP Poultry filed a complaint against Midwest on September 16, 2013, bringing claims for negligence and negligent misrepresentation based upon Midwest's shipment of the unapproved ingredient. (Fourth Party Compl. ¶¶ 55-66, Sept. 16, 2013, Docket No. 62.) Midwest filed an answer on October 8, 2013. (Answer to Fourth Party Compl., Oct. 8, 2013, Docket No. 73.)
Also on September 16, 2013, GNP Farms filed a Second Amended Complaint ("SAC") naming Wenda and Midwest as defendants, bringing a claim for negligence against Midwest. (Second Am. Compl., Sept. 16, 2013, Docket No. 61.) GNP Farms successfully served Midwest with the SAC on September 19, 2013. (Am. Summons, Sept. 17, 2013, Docket No. 63; Summons Returned Executed, Oct. 4, 2013, Docket No. 71.) Midwest's answer to the SAC therefore was due October 10, 2013, but Midwest did not file an answer by this day.
II. CORRESPONDENCE WITH MIDWEST
The parties dispute the reason for Midwest's failure to file an answer and whether Midwest was aware of the SAC. Therefore, the Court will describe the communications between the attorneys before the instant motions were filed.
On October 16, 2013, counsel for GNP Farms emailed Thomas Garrity, one of the attorneys representing Midwest who had begun working on Midwest's file on September 27, 2013, and inquired about expert reports. (Aff. of Thomas Garrity ¶ 1, Ex. 1, Dec. 3, 2013, Docket No. 91.) Counsel asked:
Mr. Garrity, do you anticipate putting in an expert report? Defendants' reports were due on October 2, 2013. Is it your interpretation under the current scheduling order that as a fourth-party defendant, your report would be due November 1?
( Id., Ex. 1.) The Scheduling Order, entered into on March 28, 2013, provides that with respect to expert reports:
The Plaintiffs' disclosures shall be made on or before September 2, 2013. The Defendant's disclosures shall be made on or before October 2, 2013. To the extent necessary, the Third-Party Defendant [GNP Poultry]'s disclosures shall be made on or before November 1, 2013. All rebuttal disclosures shall be made on or before November 29, 2013.
(Scheduling Order at 4, Mar. 28, 2013, Docket No. 23.) Garrity replied "I need to discuss this file with Jeff. Today is the 16th - I'm supposed to have an expert report in 15 days? I don't know that I can live with the Scheduling Order. I will have to get back to you." (Garrity Aff., Ex. 1.)
Counsel for GNP Farms again emailed Garrity on October 30, 2013, inquiring whether Midwest planned to file a response to the SAC and about the status of Midwest's Rule 26 disclosures, which were past due, and requests for certain discovery made during Borkowski's July deposition. (Grier Aff., Ex. 1.) Garrity stated in response:
Please send me a copy of the Second Amended Complaint; I don't recall seeing a Second Amended Complaint directed against Midwest; the pleadings in this case are a nightmare. According to the caption, Midwest is a defendant in the original action? I am involved because they are a fourth party defendant. Was there a motion to amend the pleadings to join them as a defendant in ...