UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Estate of MICHAEL SAMUELSON, )

by STEPHANIE SAMUELSON, Personal )

Representative, )

)

Plaintiff, )

)

v. ) Case No. 2:13-cv-440

)

ARCELORMITTAL USA, LLC, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court on the Motion to Strike Count II of Plaintiff’s Complaint 

[DE 125] filed by the defendant, ArcelorMittal USA, LLC, on March 14, 2018. For the 

following reasons, the motion is GRANTED.

Background

The plaintiff, Estate of Michael Samuelson, by Stephanie Samuelson, Personal 

Representative, initiated this matter on November 15, 2013, in Lake County Superior Court. The 

matter was removed to this court on November 29, 2013. The plaintiff has alleged that on 

November 13, 2013, Michael Samuelson was killed while working at the ArcelorMittal steel mill 

when he was struck by a falling steel panel. At the time of the accident, Samuelson was working 

for Pangere Corporation, an independent contractor. 

ArcelorMittal held a bid meeting for the “demolition of the Wall Plates on the Basic 

Oxygen Furnace #2 in the Rubble Pit” (demolition project). The project was to replace the 

protective steel plates that lined the concrete walls in the rubble pit. Pangere had the lowest bid 

price and was assigned the work for the demolition project. The second amended complaint has 
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alleged that “the demolition project was not a construction project, or a new construction project, 

but specifically demolition and replacement of the existing steel walls of the slag pit.” Scott 

Fritz, a Pangere superintendent, and other Pangere employees had performed the same job safely 

for ArcelorMittal ten times in the past. 

On September 20, 2017, ArcelorMittal filed a Motion for Summary Judgment [DE 91]. 

On March 8, 2018, the district court granted the motion in all respects except for the question of 

whether ArcelorMittal had a non-delegable duty to Samuelson because Pangere contracted for 

work that was intrinsically dangerous.1 The court found that the removal of the steel plates 

potentially was intrinsically dangerous work and that this issue was best left for the jury. 

However, on the other hand, the plaintiff had failed to establish that the removal of the plates 

was demolition work. 

The court held a telephonic status conference with the parties on March 8, 2018. The 

parties advised the court that they consented to have Magistrate Judge Andrew P. Rodovich 

preside over the trial of this case. This matter, upon full consent of the parties, was reassigned 

for all purposes to Magistrate Judge Andrew P. Rodovich pursuant to 28 U.S.C. Section 636(c)

on March 9, 2018. The court set this matter for trial to begin on August 20, 2018. 

ArcelorMittal has filed the motion to strike requesting that the court strike Count II of the 

plaintiff’s second amended. Count II of the complaint has alleged that ArcelorMittal’s contract 

with Pangere required the performance of intrinsically dangerous work. It further has alleged 

that demolition work is intrinsically dangerous work. ArcelorMittal contends that the plaintiff 

cannot proceed on Count II because the court has found that the work was not demolition. The 

1 District Court Judge Joseph Van Bokkelen ruled on the Motion for Summary Judgment [DE 91] on March 

8, 2018. This matter was reassigned for all purposes pursuant to 28 U.S.C. Section 636(c) on March 9, 2018, to

Magistrate Judge Andrew P. Rodovich.
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plaintiff filed a response in opposition on April 18, 2018, and ArcelorMittal filed a reply on April 

24, 2018. A hearing was held on May 22, 2018. The court indicated at the hearing that a ruling 

would be issued by separate order. 

Discussion

Federal Rule of Civil Procedure 12(f) states that “[t]he court may strike from a pleading

. . . any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike generally 

are disfavored, although they may be granted if they remove unnecessary clutter from a case and 

expedite matters, rather than delay them. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 

F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade School, 552 F. Supp. 2d 816, 825 

(C.D. Ill. 2008). The decision whether to strike a pleading is within the discretion of the court. 

Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). 

In response to ArcelorMittal’s motion for summary judgment, the plaintiff maintained

that ArcelorMittal was liable because it had a non-delegable duty to protect Samuelson who was 

involved in intrinsically dangerous work. The plaintiff presented additional arguments

including: ArcelorMittal retained control over the means and methods of Pangere’s work and 

thus subjected itself to liability for Samuelson’s death; the contractual documents between 

ArcelorMittal and Pangere imposed responsibility on ArcelorMittal for the safety of Pangere’s 

workers; and ArcelorMittal failed to provide reasonably safe premises for Samuelson.

The court held that the contract between ArcelorMittal and Pangere did not make 

ArcelorMittal responsible for Samuelson’s safety. Additionally, pursuant to §343 of the 

Restatement of Torts, ArcelorMittal was not liable as the owner of the premises where the 

accident occurred. Finally, the plaintiff had failed to establish that the work performed was 

demolition. In light of these findings, the court granted the motion for summary judgment in all 
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respects except for the question of whether ArcelorMittal had a non-delegable duty to Samuelson 

because Pangere contracted for work that was intrinsically dangerous. The court determined that 

there was sufficient evidence to create a genuine dispute of material of fact on whether the 

removal of the steel plates was intrinsically dangerous work. Therefore, as discussed and agreed

to by the parties at the hearing held on May 22, 2018, counts I, III, IV, V, and VI of the second 

amended complaint did not survive Judge Van Bokkelen’s Order, and therefore were dismissed.

The only count that remained was Count II. 

The “law of the case” doctrine is a long-standing legal doctrine. It provides that courts 

should not reopen issues that were decided in earlier stages of the same litigation. McMasters v. 

U.S., 260 F.3d 814, 818 (7th Cir. 2001) (citing Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 815–16, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). The practical implications of 

the doctrine are to promote the finality and efficiency of the judicial process. See Christianson,

486 U.S. at 816, 108 S.Ct. 2166 (citing 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal 

Practice ¶ 0.404[1], p. 118 (1984)). Therefore, when an issue is once litigated and decided, that 

should be the end of the matter. Analytical Engineering, Inc. v. Baldwin Filters, Inc., 425 F.3d 

443, 454 (7th Cir. 2005). 

ArcelorMittal has argued that the plaintiff cannot proceed on Count II. It contends that 

the court’s March 8, 2018 ruling that the work was not demolition has precluded the plaintiff’s 

ability to recover under Count II. Therefore, the issue presented before this court is whether 

Count II of the plaintiff’s second amended complaint should be stricken in light of the court’s 

finding on summary judgment that the work performed was not demolition. ArcelorMittal is not 

attempting to re-litigate an issue that already has been decided. Therefore, the law of the case 

does not preclude the relief requested.
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It is a “well-settled rule that a party is bound by what it states in its pleadings.” Help At 

Home Inc. v. Medical Capital, L.L.C., 260 F.3d 748, 753 (7th Cir. 2001); Soo Line R.R. Co. v. 

St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997). “Judicial admissions are 

formal concessions in the pleadings, or stipulations by the party or its counsel, that are binding 

upon the party making them.” Keller v. United States, 58 F.3d 1194, 1198 n. 8 (7th Cir. 1995). 

The Statement of Facts in the second amended complaint describes the work assigned to 

Pangere as demolition. Specifically, paragraph 7 of the Statement of Facts alleges, “The 

demolition project was not a construction project, or a new construction project, but specifically 

demolition and replacement of the existing steel walls of the slag pit.” Also, in paragraph 16 the 

plaintiff provides the definition of demolition as defined by the Occupational Safety and Health 

Administration (OSHA), 29 C.F.R. Part 1926, subpart T. Moreover, paragraphs 17 through 22 

allege the hazards, specific requirements, and fatalities that are associated with demolition work. 

The allegations contained in the Statement of Facts are centered on the plaintiff’s contention that

the project performed was demolition. 

Count II alleges that ArcelorMittal’s contract with Pangere required the “performance of 

intrinsically dangerous work” and that “demolition work is intrinsically dangerous work.” 

Furthermore, in Count II the plaintiff alleges that notwithstanding its duty, ArcelorMittal, by and 

through its agents, servants, and employees was then and there guilty of one or more of the 

following careless and negligent act and/or omissions:

a. Failed to complete the required engineering survey, prior to the start of any 

demolition work; 

b. Failed to adhere to their own Handbook’s heightened requirements for demolition 

projects performed at their facilities, due to hazards inherent in demolition 

operations; 
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c. Failed to complete the required engineered lift plan for all major lifts, which at a 

minimum shall include crane capacity, cable size and attachment details; 

d. Failed to require Pangere to employ a dedicated safety person who must conduct 

continuous inspections to detect hazards from the inherently weakened structures; 

e. Failed to comply with the contractual requirement that Pangere must contact 

ArcelorMittal USA, LLC supervision from the hot work area to insure that no 

abnormal or changed conditions exist; 

f. Failed to enforce the contractual provision that required Pangere to obtain the 

approval of the ArcelorMittal USA, LLC engineering group before burning holes

into or welding onto any structural or building member; and 

g. Failed received the required Hot Work Approval Form prior to grinding, burning, 

welding or any open flame cutting.

ArcelorMittal operates under its Contractor Safety, Health and Environment Handbook,

which includes policies, procedures, and general terms and conditions. The subparagraphs a 

through g address demolition and the contractual requirements between ArcelorMittal and 

Pangere. There is no dispute that subparagraphs 5a and 5b refer to demolition and 5c and 5d are 

pulled directly from ArcelorMittal’s handbook. Although 5c and 5d do not explicitly state the 

word demolition, the complaint has alleged that “Page 11, Section 7A.0 of the Handbook 

outlines Mittal’s requirements for demolition projects performed at their facilities, which 

includes a requirement in Section 7A.4 of an engineered lift plan for all major lifts: the 

engineered lift plans shall include at a minimum crane capacity, cable size, and attachment 

details.” Moreover, 5d also was pulled directly from Section 7A.0 of the Handbook, 7A.8, titled

Demolition. Therefore, in Count II paragraph 5 the plaintiff has used language that comes

directly from ArcelorMittal’s handbook under Section 7A.0, Demolition. 

Additionally, the court finds that 5e through 5g refer to the contractual requirements 

between ArcelorMittal and Pangere. The court in its Order on summary judgment indicated that 

the plaintiff had overlooked provisions in the contract that mandated that the contractors control 
7

access to the job site, be responsible for all persons and work at the job site, and protect all 

persons and property from injury, damage, or loss. The court held that the contract did not make 

ArcelorMittal responsible for Samuelson’s safety. This holding eliminates subparagraphs 5e 

through 5g.

A principal is not liable for the negligence of an independent contractor whom it

employed, unless one of the five exceptions applies: (1) where the contract requires the 

performance of intrinsically dangerous work; (2) where the principal is by law or contract 

charged with performing the specific duty; (3) where the act will create a nuisance; (4) where the 

act to be performed will likely cause injury to others unless due precaution is taken; and (5) 

where the act to be performed is illegal. Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 

584, 586 (Ind. 1995). The plaintiff has alleged in Count II that ArcelorMittal contracted with 

Pangere to perform intrinsically dangerous work. However, the plaintiff is bound by the 

allegations she made in the second amended complaint. It is clear that Count II directly 

addresses that demolition work is intrinsically dangerous work. Yet, the court has ruled that the 

work performed was not demolition. The complaint is devoid of any other factual allegations 

that the work was intrinsically dangerous. Thus, the plaintiff has not presented any allegations 

that even if taken as true would entitle the plaintiff to relief. The court hereby STRIKES Count 

II of the plaintiff’s second amended complaint.

In the response in opposition to the motion to strike, the plaintiff has requested that if the 

court was to grant the motion to strike, in the alternative, the plaintiff be granted leave to amend 

the second amended complaint. First, the plaintiff has failed to file a separate motion to amend 

the complaint. A motion to amend a complaint must be filed separately, rather than incorporated 

into a response. See N.D. Ind. L.R. 7-1 (provides that motions must be filed separately). Also,
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motions to amend a pleading must include the original signed proposed amendment as an 

attachment. N.D. Ind. L.R. 15-1. Despite the fact that the plaintiff’s request to amend 

procedurally is improper the court will decide this issue on the merits.

Federal Rule of Civil Procedure 15(a) provides that a party may amend the party's 

pleading only by leave of court or by written consent of the adverse party and that leave shall be 

freely given when justice so requires. Because pleadings merely serve to put the opposing side 

on notice, they should be freely amended as the case develops, as long as amendments do not 

unfairly surprise or prejudice the opposing party. Rule 15(a); Jackson v. Rockford Housing 

Authority, 213 F.3d 389, 390 (7th Cir. 2000). The decision to deny leave to amend a pleading is 

an abuse of discretion only if no reasonable person could agree with the decision. Winters v. 

FruBCon, Inc., 498 F.3d 734, 741 (7th Cir. 2007) (quoting Butts v. Aurora Health Care, Inc.,

387 F.3d 921, 925 (7th Cir. 2004)); Ajayi v. Aramark Business Services, 336 F.3d 520, 530 (7th 

Cir. 2003).

Leave to amend may be denied at the district court's discretion for undue delay, bad faith 

or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 

previously allowed, undue prejudice to the opposing party by virtue of allowance of the 

amendment, futility of amendment, etc. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 

9 L. Ed. 2d 222 (1962).

The court finds that the plaintiff’s request to amend is untimely. This matter is set for 

trial on August 20, 2018. It would be unduly prejudicial to allow an amendment this close to the 

scheduled trial date. The plaintiff, from the beginning, has alleged that the work performed by 

Pangere was demolition and that demolition work is intrinsically dangerous. Therefore, by 

granting the plaintiff leave to amend the complaint, the plaintiff would be presenting a new 
9

factual basis that was not previously presented in the pleadings. It would prejudice 

ArcelorMittal to have to re-litigate this matter on a new basis. The denial of a motion to amend 

pleadings is proper if the discovery and dispositive deadlines have passed and the motion is filed 

near the trial date. For example, in Alinsky v. United States, 415 F.3d 639, 648 (7th Cir. 2005), 

the Seventh Circuit denied the plaintiffs’ motion for leave to amend when the “plaintiffs’ motion 

came approximately three years after the start of the litigation and approximately eight months 

after the plaintiff completed discovery.” Consistently, the Seventh Circuit has affirmed denials 

of a motion for leave to amend where a plaintiff has sought leave to amend after the defendant 

filed a successful motion for summary judgment. Sanders v. Venture Stores, Inc., 56 F.3d 771, 

774 (7th Cir. 1995); see also Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir. 1994) (district 

court did not abuse its discretion in denying motion to amend “after discovery was completed 

and after motions for summary judgment were fully briefed . . . This motion came late in the 

day.”).

Also, the court finds that allowing the plaintiff to amend her complaint would be futile. 

The court may deny leave because the amendment is futile. Bethany Pharmacal Company, Inc. 

v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). It would be improper for the court to deny 

leave to amend if the proposed amendment is not clearly futile. See Wright & Miller, 6 

Federal Practice & Procedure § 1487, at 637-642 (2d ed. 1990) ("If the proposed change

clearly is frivolous or advances a claim or defense that is legally insufficient on its face, the court 

may deny leave to amend."). Futility generally is measured by whether the amendment would 

survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bethany 

Pharmacal Company, Inc., 241 F.3d at 861; Range v. Brubaker, 2009 WL 3257627, at *3 

(N.D. Ind. 2009).
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As a long-standing general rule, a principal is not liable for the negligence of an 

independent contractor whom it employs. Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 

584, 586 (Ind. 1995). However, Indiana recognizes the non-delegable duty doctrine. Indiana has 

recognized five exceptions to the general rule of non-liability, including where the contract 

requires the performance of intrinsically dangerous work. Bagley, 658 N.E.2d at 586 (Ind. 

1995); PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 950 (Ind. 2005), abrogated in part by 

Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345 (Ind. 2006). The

Indiana Supreme Court in the Roberts opinion held that:

Employees of the contractor should have no claim against a principal for their

own or the contractor’s failure to use ordinary care in carrying out the contractor’s

assignment. Nor should a principal be liable to a contractor or its employees

simply by reason of employing the contractor to engage in inherently dangerous

activity. We hold therefore that in the absence of negligent selection of the

contractor, an employee of the contractor has no claim against the principal

based solely on the five exceptions to the general rule of non-liability for acts

of the contractor.

Roberts, 829 N.E.2d at 953 (emphasis added).

Therefore, in order to proceed on the amended complaint the plaintiff first must prove 

that ArcelorMittal negligently hired Pangere. A principal owes no duty of care to an employee 

of an independent contractor if there is no allegation the principal negligently selected its 

independent contractor. Roberts, 829 N.E.2d at 953, 957; see also Helms v. Carmel High Sch. 

Vocational Bldg. Trades Corp., 854 N.E.2d 345, 346 (Ind. 2006) (limiting the Roberts holding 

to only the first and fourth exceptions to the general rule of non-liability). To prove negligent 

hiring under Indiana law, a plaintiff must show, like any negligence claim, a duty, a breach of 

that duty, and an injury proximately caused by the breach of that duty. Clark v. Artis, Inc., 890

N.E.2d 760, 763 (Ind. Ct. App. 2008). An essential component to proving negligent hiring is 

whether it was reasonably foreseeable that Pangere would not perform its work safely. Clark, 
11

890 N.E.2d at 764. Indiana law is clear that “negligence cannot be inferred from the mere fact of 

an accident.” Wright Corp. v. Quack, 526 N.E.2d 216, 218 (Ind. Ct. App. 1988). The Seventh 

Circuit has found no negligent hiring when a contractor had a good reputation, and the principal 

had no duty to quiz him concerning the details of his experience. Hixon v. Sherwin-Williams 

Co., 671 F.2d 1005, 1010 (7th Cir. 1982). 

The court should allow a plaintiff to amend the complaint if the plaintiff can put forth 

some allegations that allow the proposed amendment to survive a motion to dismiss, even if 

portions of the complaint are futile. Estate of Simpson v. Bartholomew County Jail, 2014 WL 

5817319, at *3 (S.D. Ind. 2014). ArcelorMittal has indicated that Pangere had performed this 

job approximately ten times in the past without any issues. (Deposition of Scott Fritz, p. 55). 

Moreover, ArcelorMittal checked Pangere’s accident history through a system called 

ISNetworld, which provide information on the contractor’s incident rates, lost time rates, fatality 

rates, and incident severity. Pangere had received a passing grade. (Deposition of Sam Bird, pp. 

56-57.)

There is no evidence in the record to support any factual allegations that Pangere 

negligently was hired. Also, the plaintiff has not disclosed any witness who will offer lay or 

expert testimony on the negligent hiring issue. Therefore, the allegations contained in the

amended complaint would be conclusory, speculative, and lack factual support. Thus, an 

amendment would not cure the deficiencies. Moreover, if the plaintiff was to amend the 

complaint, the court would be allowing her to circumvent the effects of the Order on the motion 

for summary judgment. The court finds that the plaintiff’s request to amend this late in the 

proceedings is untimely and would be futile, resulting in prejudice to ArcelorMittal. 
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Based on the foregoing reasons, the Motion to Strike Count II of Plaintiff’s Complaint 

[DE 125] is GRANTED. This matter is DISMISSED WITH PREJUDICE.

ENTERED this 15th day of June, 2018.

/s/ Andrew P. Rodovich

United States Magistrate Judge