Opinion
4:01CV3095
January 24, 2003
MEMORANDUM AND ORDER ON DEFENDANT TENNECO'S MOTION FOR SUMMARY JUDGMENT
On May 23, 2002, the plaintiff, David Wulf, filed an amended complaint against the defendants, Adaptive Motion Control Systems, Inc., (hereinafter "Adaptive") and Tenneco Automotive, Inc., d/b/a Walker Manufacturing (hereinafter "Tenneco") alleging causes of action based upon negligence, breach of warranty, and strict liability. (See Am. Compl., filing 17.) On June 7, 2002, Adaptive filed an answer to the amended complaint and a cross-claim against Tenneco. (See Answer to Am. Compl. and Cross-claim, filing 18.) Now before me is Tenneco's motion for summary judgment on Adaptive's cross-claim, filing 46. For the following reasons, I find that the defendant's motion must be granted in part.
I. BACKGROUND
The plaintiff alleges that he was working for Tenneco in its Seward, Nebraska, plant when he was injured while using a pipe-bending machine manufactured by Adaptive. (See Am. Compl., filing 17, ¶¶ 3-6.) The Amended Complaint states, "As a proximate result of Defendant [Adaptive's] negligence, breaches of warranties and conduct giving rise to strict liability in tort," the plaintiff sustained damages. (Id. ¶ 11.) It also states, "Defendant Tenneco is a named defendant in this suit solely for the purposes set forth in Section 48-118 of the Nebraska Workers Compensation statutes." (Id. ¶ 3 (emphasis omitted).) Revised Statute of Nebraska section 48-118 provides that "[n]othing in the Nebraska Workers' Compensation Act shall be construed to deny the right of an injured employee . . . to bring suit against such third person [in this case, Adaptive] . . ., but in such event an employer having paid or paying compensation to such employee . . . shall be made a party to the suit for the purpose of reimbursement, under the above provided right of subrogation, of any compensation paid."
Adaptive's answer to the plaintiff's amended complaint is accompanied by a cross-claim against Tenneco. (See Answer to Am. Compl. and Cross-claim, filing 18.) In its cross-claim, Adaptive alleges that the pipe-bending machine referenced in the plaintiff's amended complaint "was supplied to [Tenneco] pursuant to Quote No. MI-157-99," which states, inter alia, that "the customer [in this case, Tenneco] agrees to indemnify and hold harmless Adaptive Motion Control Systems for any and all damage, losses and/or injury directly or indirectly caused by a failure of or use or misuse of the services, item, or machine provided by Adaptive Motion Control Systems." (Id. ¶ 13 (quoting filing 18, Ex. A at "Pg. 5").) Adaptive claims that this language entitles it to a judgment against Tenneco "for all costs, expenses, and attorney's fees incurred by it in the defense of the Plaintiff's claims," and for indemnity from Tenneco in the event of a judgment in favor of the plaintiff on his amended complaint. (Id. at 3.)
Tenneco moved to dismiss Adaptive's cross-claim for failure to state a claim upon which relief can be granted. (See filing 28.) I denied this motion, noting that Tenneco failed to establish beyond doubt that Adaptive can prove no set of facts that would entitle it to relief. (See generally Mem. and Order on Mot. to Dismiss Cross-claim, filing 72.) Tenneco has now moved for summary judgment on Adaptive's cross-claim, and my analysis of this motion is presented below.
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when the evidence favoring the party opposing the motion is sufficient to allow a jury to return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. See Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets its initial burden of establishing the nonexistence of a genuine issue, the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," id. at 256 (citing Federal Rule of Civil Procedure 56(e)).
III. ANALYSIS
Tenneco argues that it is entitled to summary judgment on Adaptive's cross-claim for the following reasons: (1) the machine that injured the plaintiff was not purchased pursuant to Quote No. MI-157-99; (2) the machine in question was in fact purchased pursuant to the terms of a Tenneco purchase order, which contained a requirement that Adaptive indemnify Tenneco against claims such as the plaintiff's; (3) the Quote does not constitute an express indemnification agreement under Nebraska law; (4) the Quote fails to indemnify Adaptive against its own negligence; and (5) Adaptive's cross-claim was filed out of time. I shall review each of these arguments in turn.
A. Whether the Pipe-bender Was Purchased Pursuant to Quote No. MI-157-99
Adaptive's cross-claim alleges the pipe-bending machine referenced in the plaintiff's amended complaint was supplied to Tenneco pursuant to Quote No. MI-157-99, and that Adaptive is entitled to judgment against Tenneco pursuant to the indemnification language contained therein. Tenneco argues that the undisputed evidence shows that the particular pipe-bending machine at issue in this case was not supplied pursuant to Quote No. MI-157-99. For example, Patrick Retsel, who was vice president of Adaptive at the time of his deposition in this case, (see Retzel Dep., filing 53, at 4:21-23), suggested that the machine at issue was supplied pursuant to a "new quote," (id. at 53:8; see also id. at 52:19-53:11). Also, Michael Craig Webster, Adaptive's president, stated that the quote was "certainly not for the machines we're talking about here." (Webster Dep., filing 53, at 10:10-11. See also id. at 9:5-10:14.) However, Adaptive has responded with evidence indicating that the machine may have been supplied pursuant to Quote No. MI-120-99, which was referenced in Tenneco's Purchase Order Number 44298 and which contains the same indemnity provision as Quote No. MI-157-99. (See Seeley Ex. 15-16, filing 77.)
It seems to me that there is no genuine issue as to whether the pipe-bender was supplied pursuant to Quote No. MI-157-99; the undisputed evidence indicates that a subsequent quote was issued to Tenneco by Adaptive. However, there remains a genuine issue as to whether the pipe-bender was supplied pursuant to an agreement that contained language identical to that appearing in Quote No. MI-157-99. For this reason, I find that Tenneco's argument fails to establish that Tenneco is entitled to summary judgment on Adaptive's cross-claim.
Indeed, Tenneco argues that the pipe-bender was purchased pursuant to a standard purchase order form. (See infra Part III.B.) The only such form in evidence appears to be Purchase Order Number 44298, which, as I noted above, refers to Quote No. MI-120-99. (See Seeley Ex. 15-16, filing 77.)
B. Whether the Terms of Tenneco's Purchase Order Are Controlling
Tenneco next argues that "[t]he tube bender machine that is the subject of this lawsuit was purchased pursuant to standard Tenneco purchase order that contains language expressly contradicting the indemnification language Adaptive relies upon for its Cross-claim." (Tenneco's Br. in Supp. of Summ. J. (hereinafter "Tenneco's Br."), filing 47, at 5.) Although Tenneco has not referred me to a complete copy of the purchase order that it alleges governed the transaction for the subject machine, it does refer me to the Affidavit of Dave Seeley, who states that the "relevant terms of the purchase order" are attached to his affidavit as Exhibit A. (Seely Aff., filing 53, ¶ 3.) Exhibit A includes the following language:
CONDITIONS AND TERMS
. . . .
13. Seller [Adaptive] shall indemnify, protect and save harmless Buyer [Tenneco] . . . against all . . . liabilities, damages, claims, demands, counsel fees, judgments, and suits in law or equity (and upon request shall defend same at Seller's expense) for or resulting from . . . (b) any defective materials or workmanship, breach of warranty or other act or omission of Seller . . . negligent or otherwise, or (c) any injury to person or property resuling from work done by or for Seller, or (d) the manufacture of sale by Seller of any ordered materials.
Paragraph 14 of these "Conditions and Terms" contains additional indemnification provisions. (See Seely Aff., filing 53, Ex. A.) In addition, paragraph 3 of the document states that "[a]cceptance of this purchase order is expressly limited to acceptance of all of the terms and conditions hereof." (Id.)
Tenneco argues that the terms of its purchase order should be controlling because it "was sent to Adaptive for the purpose of ordering the purchase of the tube bender, and that occurred subsequent to any quote that may have been received from Adaptive for the tube bender in question." (Tenneco's Br. at 6.) It also argues that under Nebraska's Uniform Commercial Code section 2-207, the indemnification term inserted into Adaptive's Quote is a "material modification" and therefore ought not be incorporated into the bargain. (Id.)
It seems to me that Tenneco's argument assumes that Adaptive's Quote did not amount to an offer. According to the Restatement (Second) of Contracts section 24 (1981), "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." The Eighth Circuit has recognized that under some circumstances, a price quote may constitute an offer. See, e.g., Litton Microwave Cooking Products v. Leviton Manufacturing Co., Inc., 15 F.3d 790, 794-95 (8th Cir. 1994) (discussing Minnesota rule regarding offers). However, Tenneco has presented no evidence, argument, or legal authority in support of its suggestion that its purchase order, as opposed to the Quote that preceded it, was the offer that formed the basis of the parties' agreement. If indeed Adaptive's price quote amounted to an offer, Tenneco's purchase order may have simply been an acceptance of that offer, albeit with terms different from those contained within Adaptive's Quote. The additional terms in Tenneco's acceptance would trigger the provisions of Nebraska U.C.C. § 2-207, but would do so in a manner that runs counter Tenneco's position. In other words, if Adaptive's Quote is deemed to be an offer, Tenneco's acceptance (in the form of the purchase order) may be deemed to contain additional terms that materially alter the offer and therefore do not become a part of the contract. See Neb. Rev. Stat. U.C.C. § 2-207(2).
Without first establishing which of the parties' forms initiated the bargain, it is not possible to determine the starting point for my analysis under section 2-207. Since the briefs before me have neglected this issue, I feel that I cannot resolve the impending battle of forms at this time. Further evidence and argument from the parties will be necessary before it can be determined whether either of the indemnity provisions may properly be included in the contract pursuant to section 2-207.
Adaptive does state in its brief in opposition to Tenneco's motion for summary judgment that one of a number of "mind-boggling" scenarios entails the possibility that Tenneco orally accepted the indemnity provision in Adaptive's Quote. (See Adaptive Motion's Br. in Opp'n to Def. Tenneco's Mot. for Summ. J. (hereinafter "Adaptive's Br."), filing 75, at "Page 8 of 10.") Thus, Adaptive did not completely neglect the possibility that its Quote constituted the offer that initiated the bargain between the parties. However, mere speculation is insufficient to properly oppose a motion for summary judgment, see, e.g., Shrum v. Kluck, 85 F. Supp.2d 950, 953 (D.Neb. 2000) (quoting Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994)), and I recognize that there is no evidence supporting Adaptive's claim that an oral acceptance occurred. Nevertheless, since Tenneco has not addressed the "offer" issue, find that it has failed to demonstrate that it is entitled to summary judgment.
C. Whether Adaptive's Quote Constitutes an Express Indemnification Agreement under Nebraska Law
Tenneco argues that summary judgment should be granted in its favor for the reasons stated in its motion to dismiss Adaptive's cross-claim and that motion's supporting brief. (See Tenneco's Br. at 3. See also filing 28; Br. in Supp. of Tenneco Automotive, Inc.'s Motion to Dismiss Cross-claim of Adaptive Motion Control, Inc. for Failure to State a Claim.) However, Tenneco has not supplemented its previous arguments with citations to supporting facts.
In resolving Tenneco's motion to dismiss, I stated as follows:
What Tenneco has shown is that we cannot be sure that the Quote constitutes a contract. That, however, does not constitute a showing that Adaptive could not show by evidence that the Quote was in fact and in law a contract sufficient to bind Tenneco. The cross-claim alleges that Tenneco has an obligation to indemnify Adaptive because the machine was supplied pursuant to the Quote that contains the indemnification language. What evidence can be offered to support that allegation we do not know on the basis of what is before me in this motion. No evidence outside the cross-claim has been submitted. The burden resting upon the movant, Tenneco, has not been met.
. . . .
Tenneco in its brief in support of its motion to dismiss at page 5 argues that in the Oddo case [Oddo v. Speedway Scaffold Co., 233 Neb. 1 (1989)] "the Court emphasized the parties' two-year course of dealing whereby the contractor periodically leased scaffolding from the lessor, signing the contract and keeping a copy without complaint or objection, a routine the Court called a 'longstanding practice.'" That is quite true and, for all we know, similar evidence could be offered in this case if opportunity presented itself. It is the obligation of Tenneco the movant of a motion to dismiss to show that such evidence could not be offered. It has not done so. The language of the cross-claim is broad enough to allow introduction of such evidence.
. . . .
The Eighth Circuit case of Merryman v. Iowa Beef Processors, Inc., 978 F.2d 443 (8th Cir. 1992) is not helpful to Tenneco in this motion to dismiss. The Merryman case, also, was decided on the basis of facts presented in connection with a motion for summary judgment, rather than a motion to dismiss. The court held that the district court's determination that the employer was not contractually obligated to indemnify the plant owner because there was insufficient evidence of an alleged contract of indemnity. Specifically, the court said at page 445:
IBP sent Allstate a standard purchase order and an acknowledgment form at the start of the project. IBP claims that the presence of the language . . . on the purchase order form, when considered in the context of the continuing business relationship between IBP and Allstate, demonstrates that an indemnity contract existed between the two parties. However, (i) there was no evidence the acknowledgment was signed by Allstate and returned to IBP; (ii) the purchase order was never signed by Allstate; (iii) no Indemnity Agreement was ever submitted to IBP by Allstate or its insurer, as ostensibly required by par. 15.d; and (iv) there was no other evidence that Allstate understood and intended to be bound by the indemnity provisions in par. 15.d.
Perhaps the same or similar facts are present in this case, but I do not know that and it is the obligation of the movant to have made that showing, if it could be made. Resolution will need to be made on a motion for summary judgment or at a trial.
(Mem. and Order on Mot. to Dismiss Cross-claim of Adaptive Motion Control Systems, Inc. for Failure to State a Claim, filing 72, at 3-4.) The foregoing excerpt from the memorandum on Tenneco's motion to dismiss repeatedly indicates that the cases relied upon by Tenneco were decided based upon facts presented to the court in connection with summary judgment motions. I noted that no evidence was presently available to support Tenneco's arguments, but recognized that such evidence might be placed before me on a motion for summary judgment. Tenneco has filed a motion for summary judgment, but in doing so it has merely referred me to its motion to dismiss and, most importantly, it has referred me to no facts to support any of the arguments set forth in its motion to dismiss. (See generally Def. Tenneco's Statement of Uncontroverted Facts, filing 48.)
I appreciate the fact that Tenneco no longer carries the burden of demonstrating "beyond doubt that the [cross-claimant] can prove no set of facts in support of [its] claim which would entitle [it] to relief." Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997) (quoting Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). However, it still must demonstrate the nonexistence of a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This does not mean that Tenneco must negate Adaptive's Cross-claim. See id. However, Tenneco must demonstrate that "the standard for the entry summary judgment . . . is satisfied." Id. This means that Tenneco "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. I do not believe that Tenneco has met this standard by referring me only to its motion to dismiss and its supporting brief.
In the absence of additional facts, I must conclude that the entry of summary judgment in Tenneco's favor is precluded by the existence of genuine factual issues. First, as I discussed above, it seems to me that there remains a genuine issue as to whether Adaptive's Quote constitutes an offer. Second, with respect to the portion of Tenneco's argument based upon the Oddo case (see excerpt of memorandum quoted above), Tenneco has not referred me to evidence suggesting that there has been no "longstanding practice" between the parties. (See Def. Tenneco's Statement of Uncontroverted Facts, filing 48.) In contrast, Adaptive has referred me to evidence indicating that it has sold over one hundred tube bending machines to Tenneco over the course of seven or eight years, and that its standard Quote form was used during each transaction. (See Adaptive's Br., filing 75, Statement of Facts (citing Retzel Dep., filing 53, at 4:21-23).) This evidence clearly damages Tenneco's argument that the present case must be distinguished from Oddo. Tenneco has also referred me to no evidence demonstrating that the facts in the present case are similar to the four factors mentioned in Merryman v. Iowa Beef Processors, Inc., 978 F.2d 443, 445 (8th Cir. 1992). (Compare Def. Tenneco's Statement of Uncontroverted Facts, filing 48 with Merryman, 978 F.2d at 445.) Nor have I been given any reason to conclude that the indemnification terms relied upon by Adaptive are no more than "boilerplate terms buried on the back of a third party's purchase order form, containing insurance conditions that the parties obviously ignored in fulfilling their primary contractual undertakings." Merryman, 978 F.2d at 445. On the contrary, the few facts that have been laid before me indicate that Adaptive's indemnity provision is not "on the back" of its Quote, and again I believe that there is a genuine issue as to whether the Quote amounts to an offer. Also, at this time I have no basis for concluding that the parties "obviously ignored" this language, although this may be proven true at some point.
It should be noted that this statement is not supported by a citation to Nebraska law (or any other citation). It should also be noted that in Oddo v. Speedway Scaffold Co., 233 Neb. 1 (1989), an indemnity provision "on the back" of a lease was found to be valid. See Oddo, 233 Neb. at 3-4, 9.
It appears that the issues presented by Uniform Commercial Code section 2-207 and the need to identify the offer that led to the formation of the governing contract were not before the court in Merryman.
In fairness to Tenneco, it should be noted that the delay in the issuance of my memorandum on its motion to dismiss deprived Tenneco of the benefit of reviewing my memorandum while assembling its motion for summary judgment. Nevertheless, I must conclude that a genuine issue remains as to whether Adaptive's Quote constitutes a valid indemnification agreement under Nebraska law.
D. Whether Adaptive's Quote is Sufficient to Indemnify Adaptive Against Its Own Negligence
Tenneco next argues that the indemnification language in Adaptive's Quote "does not amount to express language to insure Adaptive's losses arising out of its own negligence product liability." (Tenneco's Br. at 7 (emphasis omitted).)
As Tenneco correctly states in its brief, "An indemnitee may require another to insure losses incurred by reason of his or her own negligence if the contract contains express language to that effect or contains clear and unequivocal language that that is the intention of the parties." Anderson v. Nashua Corp., 251 Neb. 833, 838 (1997) (citing, inter alia, Oddo v. Speedway Scaffold Co., 233 Neb. 1 (1989)). (See also Tenneco Br. at 7.) In response to Tenneco's argument, Adaptive states as follows:
In this case it is yet to be determined whose acts and omissions were causative to the injuries suffered by David Wulf. The potentially causative agents were Wulf, Tenneco and/or Adaptive Motion or some combination of them. Until a determination is made as to the contributing factors for this incident, the issues of the sufficiency and scope of the indemnity provision in the Adaptive Motion Quote are not ripe for resolution.
(Adaptive's Br. at "Page 9 of 10.")
It seems to me that Adaptive's response is not relevant to the issue presently before me. I see no reason why I should not now determine whether or not the indemnity provision protects Adaptive against its own negligence, assuming that this provision is later found to be a part of the contract. I shall therefore proceed to analyze Tenneco's argument.
First, it is apparent that the Quote does not contain express language stating that Adaptive is to be indemnified for claims based upon Adaptive's own acts or omissions, negligent or otherwise. To refresh, the relevant portion of the Quote states as follows:
The customer agrees to indemnify and hold harmless Adaptive Motion Control Systems for any and all damages, losses, and/or injury directly or indirectly caused by a failure of or use or misuse of the services, item, or machine provided by Adaptive Motion Control Systems.
(Seeley Ex. 16, filing 77, at 8.) In Anderson v. Nashua Corp., 251 Neb. 833, 835, 838-39 (1997), the Supreme Court of Nebraska concluded that the following contract provision did not contain express language requiring one party to furnish insurance to cover harm caused by the other party's own negligence:
Seller shall carry at his own expense, sufficient public liability, property damage, employer's liability and compensation insurances . . . as will protect Seller . . . and Buyer from all risks and from any claims that may arise out of or pertain to the performance of such work or services, including those coming under applicable Workmen's Compensation or occupational disease statutes.
Anderson, 251 Neb. at 835. The court also noted that the following provision also lacked express language requiring a party to furnish insurance to cover another's negligence:
The contractor . . . shall take out and maintain . . . such . . . [i]nsurance as shall protect him and any subcontractor performing work covered by this Contract, and the District . . . from any claims for damages for personal injury, including wrongful death, as well as claims for property damages, which may arise from operations under this Contract, whether such operations be by himself or by any subcontractor, or anyone directly or indirectly employed by either of them.
Id. at 839 (quoting Omaha P.P. Dist. v. Natkin Co., 193 Neb. 518, 520 (1975). Similarly, Adaptive's Quote does not contain express language stating that Tenneco must indemnify Adaptive against claims arising as a result of Adaptive's own negligence.
It remains to be determined whether the Quote contains clear and unequivocal language that it was the intention of the parties that Adaptive be indemnified against claims resulting from its own negligence. In both Anderson and Omaha Public Power District, the Supreme Court of Nebraska concluded that the provisions quoted above did not contain such clear and unequivocal language. See Anderson, 251 Neb. at 839-41 (quoting Omaha P.P. Dist, 193 Neb. at 523 and Oddo v. Speedway Scaffold Co., 233 Neb. 1, 9 (1989)). However, in Oddo v. Speedway Scaffold Co., 233 Neb. 1 (1989), the following provision was found to contain clear and unequivocal language that the "lessee" was required to indemnify the "lessor" against claims arising from the lessor's own negligence:
11. Indemnification: Lessee shall indemnify and defend lessor against and hold lessor harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorney's fees which:
(1) Relate to injury or destruction of property . . . and;
(2) Are caused, or claimed to be caused, in whole or in part by the equipment leased herein or by the liability or conduct (including active, passive, primary or secondary) of lessor . . . . The parties agree that lessor shall only be liable or responsible for actions of willful misconduct.
. . . .
It is the purpose of this clause to shift the risk of all claims relating to the leased property to the lessee during the entire term of this lease.
Oddo, 233 Neb. at 3-4 (emphasis omitted). The court held, "Although the lease's indemnity clause does not contain the word negligence, the intended consequence of indemnity is expressed clearly and unequivocally — Contractor was obligated to indemnify Speedway concerning claims arising from Speedway's conduct, including negligence, but excluding claims based on Speedway's willful misconduct." Id. at 9.
The indemnification provision in Adaptive's Quote is distinguishable from that in Oddo, because Adaptive's Quote contains no mention of indemnity for damages resulting from Adaptive's conduct. In this respect, Adaptive's Quote is similar to the language contained within the provisions discussed by the court in Anderson v. Nashua Corp., 251 Neb. 833, 835, 838-39 (1997). On the question of indemnity for claims arising out of Adaptive's own negligence, the Quote is not clear and unequivocal, but is ambiguous. To paraphrase the Supreme Court of Nebraska, if the parties intended Tenneco to indemnify Adaptive against its own negligence, I find as a matter of law that this intention has not been directly expressed or demonstrated by clear and unequivocal language. See Anderson v. Nashua Corp., 251 Neb. 833, 840-41 (1997). Therefore, even if it is shown that the indemnification language contained within Adaptive's Quote is part of the contract between Adaptive and Tenneco, the language does not entitle Adaptive to indemnification against claims based upon its own acts.
E. Whether Adaptive's Cross-claim Was Filed Out of Time
Tenneco asks that I reject Adaptive's cross-claim because it was "filed out of time and without permission or extension." (Tenneco's Br. at 8.) I note that Tenneco has not supported its argument with any legal authority.
Prior to the filing of the plaintiff's amended complaint on May 23, 2002, Tenneco was not a party to this action. Adaptive filed its answer to the amended complaint, which contained its cross-claim against Tenneco, on June 7, 2002. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, "A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders." Although the amended complaint was filed on May 23, 2002, its accompanying certificate of service indicates that a copy of the amended complaint was served upon Adaptive's attorneys by first-class mail on April 26, 2002.
I do not know what to make of the certificate of service accompanying the amended complaint. However, I note that the amended answer was filed within 10 days of the filing of the amended complaint. See Fed.R.Civ.P. 6(a) ("When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."). I find that the amended answer was timely filed, and therefore I see no reason to simply disregard the cross-claim contained therein.
May 27, 2002, was a legal holiday. See Fed.R.Civ.P. 6(a) (noting that Memorial Day is a "legal holiday.")
IT IS ORDERED that:
1. The indemnification language contained within Adaptive's Quote does not entitle Adaptive to indemnification against claims based upon Adaptive's own acts or omissions; and
2. Defendant Tenneco's Motion for Summary Judgment, filing 46, is otherwise denied.