MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on Third-Party Defendant Peggy L. Gossett's motion for summary judgment and motion to dismiss [DN 24] and Defendant Wal-Mart Stores East's motion for leave to amend scheduling order and leave to file an amended third party complaint [DN 25]. Fully briefed, these matters are ripe for decision. For the following reasons, the Court GRANTS the Third-Party Defendant's motion to dismiss and DENIES Defendant Wal-Mart's motion for leave to amend.
Plaintiff Theresa Wilson was a customer at the Wal-Mart Store #294 located in Central City, Kentucky on August 14, 2010. As she was shopping in the women's clothing department, Wilson was struck by a circular clothing rack which knocked her to the ground, causing injuries. The clothing rack fell over when Third Party Defendant Peggy L. Gossett collided with it while operating an in-store vehicle called a MartCart.
Wilson filed her Complaint in Muhlenberg Circuit Court on July 28, 2011 and the case was removed to this Court. In her Complaint, Wilson states that her injuries were foreseeable as Wal-Mart provided scooters to elderly customers on its premises with little or no instruction, and had displays in the store which would fall over when struck by a scooter. On April 19, 2012, Wal-Mart Stores East ("Wal-Mart") filed its Third Party Complaint [DN 10] against Peggy Gossett on the basis of entitlement to apportionment or indemnity. Gossett has filed a motion to dismiss the Third Party Complaint or grant summary judgment to Gossett. Wal-Mart is now seeking leave to amend its Third Party Complaint.
II. STANDARD OF REVIEW
Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court "must construe the complaint in the light most favorable to plaintiff, " League of United Latin Am. Citizens v. Bredesen , 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), "accept all well-pled factual allegations as true[, ]" id., and determine whether the "complaint states a plausible claim for relief[, ]" Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for its entitlement to relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when it "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678. A complaint falls short if it pleads facts "merely consistent with a defendant's liability" or if the alleged facts do not "permit the court to infer more than the mere possibility of misconduct." Id. at 678, 679. Instead, the allegations must "show[ ] that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Wilson's Complaint states that Wal-Mart was negligent in allowing customers to operate MartCarts with little or no instruction in a store with displays susceptible to being knocked over when hit by a MartCart. Construing the Complaint in the light most favorable to the plaintiff, the Court finds that Wilson has made two claims: (1) Wal-Mart negligently provided MartCarts to patrons with little or no instruction; and (2) a general premises liability claim regarding displays which would fall over if struck by scooters.
A. Motion to Dismiss and Motion for Summary Judgment
In her motion to dismiss, Gossett argues that the Third Party Complaint is devoid of any factual allegations and asserts only legal conclusions as required under Fed.R.Civ.P. 8(a)(2). Furthermore, Gossett asserts that the Third Party Complaint provides no legal theory under which Wal-Mart is entitled to either indemnity or apportionment. Gossett states that if the jury finds against Wal-Mart on one or both of the claims, "then Wal-Mart is obviously not entitled to indemnity against Ms. Gossett for their own negligence." (Gossett's Mot. to Dismiss, 7 [DN 24].) Citing to several Western District of Kentucky cases, Gossett argues that the party seeking indemnity can not be an active wrongdoer' in order to assert a claim for indemnity, and the Complaint only contains "specific allegations of active and concurrent negligence against Wal-Mart in the Complaint which can not be passed on' to Ms. Gossett." (Id. at 7 [DN 24] (see Potts v. Martin & Bayley, Inc., 2011 WL 2532894 (W.D. Ky. Sept. 28, 2011); ISP Chemicals LLC v. Dutchland, Inc. , 771 F.Supp.2d 747 (W.D. Ky. 2011); Franke v. Ford Motor Co. , 398 F.Supp.2d 833 (W.D. Ky. 2005)).) Gossett states that apportionment is not a substantive cause of action, and without an indemnity claim, a third party complaint for apportionment does not state grounds upon which relief may be granted. (Gossett's Reply, 3 [DN 28].)
In response, Wal-Mart states that "Kentucky law authorizes bringing a joint tortfeasor (in pari delicto ) into an action as a third party defendant to be given [a] line' in the apportionment of damages." (Wal-Mart's Response, 3 [DN 26].) Wal-Mart reasons that adding Gossett as a thirdparty defendant in order to obtain an apportionment line' in the jury instructions is appropriate. As to the indemnity claim, Wal-Mart asserts that it is not in pari delicto with Gossett and its fault is secondary, while Gossett's fault is primary. Additionally, Wal-Mart states that the issue is not one for summary judgment as genuine issues of material fact exist as to the circumstances of the case.
Under current Kentucky law, "liability among joint tortfeasors in negligence cases is no longer joint and several, but is several only." Degener v. Hall Contracting Corp. , 27 S.W.3d 775, 779 (Ky. 2000). K.R.S. § 411.182 provides that "[i]n all tort actions, including products liability actions, involving fault of more than one (1) party to the action..., the court... shall instruct the jury to [determine]... [t]he percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability." K.R.S. § 411.182 "is simply a codification of this common law evolution of the procedure for determining the respective liabilities of joint tortfeasors, ' whether joined in the original complaint or by third-party complaint." Ky. Farm Bureau Mut. Ins. Co. v. Ryan , 177 S.W.3d 797, 802-03 (Ky. 2005) (quoting Degener , 27 S.W.3d at 779). "If there is an active assertion of a claim against joint tortfeasors, and the evidence is sufficient to submit the issue of liability to each, an apportionment instruction is required." Floyd v. Carlisle Constr. Co. , 758 S.W.2d 430, 432 (Ky.1988) (emphasis omitted).
Wal-mart has a right to an apportionment instruction under KRS § 411.182 upon a finding "where underlying substantive fault exits, but it does not provide a substantive cause of action itself." Hall v. MLS National Medical Evaluations, Inc. , 2007 WL 1385943, *2 (E.D.Ky. May 8, 2007). Accordingly, the Court holds that Wal-Mart does not have a "claim" of apportionment against Gossett for apportionment, but Wal-Mart has preserved its ...