U.S. Bank National Association et al v. Londrigan, Potter & Randle, P.C. et al
Filing
235
OPINION: Plaintiffs' motion for leave to file an amended complaint pursuant to Rule 15(b) (d/e 214 ) is DENIED. SEE WRITTEN OPINION. Entered by Judge Richard Mills on 8/30/2019. (ME, ilcd)
E-FILED
Friday, 30 August, 2019 04:46:57 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CSMC 2007-C4 EGIZII PORTFOLIO LLC,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for the Registered Holders of
the MEZZ CAP COMMERCIAL
MORTGAGE TRUST 2007 C-5,
COMMERCIAL MORTGAGE PASSTHROUGH CERTIFICATES, SERIES
2007-C5,
Plaintiffs,
v.
SPRINGFIELD PRAIRIE PROPERTIES,
LLC, an Illinois limited liability company;
ROBERT W. EGIZII, an individual;
MICHAEL EGIZII, an individual;
RODNEY EGIZII, an individual; JODI
BAPTIST, an individual; JOHN PRUITT,
an individual; PAMELA JOHNSON,
EXECUTOR OF THE ESTATE OF CLYDE
BEIMFOHR; EEI HOLDING
CORPORATION, an Illinois
Corporation; and EGIZII PROPERTY
MANAGERS, LLC, an Illinois limited
liability company,
Defendants.
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OPINION
RICHARD MILLS, United States District Judge:
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Case No. 15-3195
Case No. 15-3199
(consolidated)
Pending is the Plaintiffs’ motion for leave to file an amended complaint
pursuant to Federal Rule of Civil Procedure 15(b).
In their motion, the Plaintiffs state that they seek to clarify their claims that
EEI Holding Corporation (“EEI”), Egizii Property Managers (“EPM”) and
Springfield Prairie Properties (“Borrower”) are also alter egos of one another also
apply to Counts VI (Constructive Fraud under the UFTA) and VII (Actual Fraud
under the UFTA). The Plaintiffs claim they have asserted this theory since the
beginning of the case and Defendants will not be prejudiced.
Second, the Plaintiffs allege they seek to confirm their position that certain
additional transactions between EEI, EPM and Borrower, such as the Egizii Lease
Transactions (as defined in the Complaint), also constitute fraudulent transfers under
Counts VI and VII. Some of the transactions are described in the complaint and
others were illuminated during the course of discovery.
The Plaintiffs claim that in both cases, much of the information sought to be
added was incorporated by reference into Counts VI and VII. They contend that
Defendants cannot claim surprise or prejudice. All of the information sought to be
added has been the subject of testimony and cross-examination at trial.
The Defendants object to the Plaintiffs’ motion, noting that it was filed at 9:57
p.m. on the eve of the last day of trial following days of trial testimony over the
course of five weeks and almost four years after the action was filed. They contend
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the claims that Plaintiffs seek to add are entirely new. In the original complaint,
Counts VI and VII were directed only at the Borrower and Members. Rule 15(b)(1)
provides:
If, at trial, a party objects that evidence is not within the issues
raised in the pleadings, the court may permit the pleadings to be
amended. The court should freely permit an amendment when doing
so will aid in presenting the merits and the objecting party fails to
satisfy the court that the evidence would prejudice that party’s action
or defense on the merits. The court may grant a continuance to enable
the objecting party to meet the evidence.
Fed. R. Civ. P. 15(b)(1).
The Defendants assert that alter ego liability against EEI and EPM was not
mentioned in those counts. Moreover, liability was not alleged against the Borrower
or Members relating to back rent on the North MacArthur property.
The Plaintiffs did not request leave to amend the complaint at the final pretrial
conference on March 28, 2019. On April 27, 2019, the Defendants note they
objected to the Plaintiffs’ attempt to add allegations to the draft pretrial order
claiming liability against EEI and EPM for alter ego liability, and for back rents
against the Borrower on the North MacArthur property under the fraudulent transfer
counts. At the time, the Plaintiffs did not seek leave of court in attempting to expand
the issues set forth in the original complaint. The Defendants continued to object to
these issues at trial. The Court generally deferred rulings on the objections.
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The Defendants further allege that the fact that Plaintiffs conducted discovery
regarding the back rents and alter ego theories is meaningless because those legal
theories were at issue in other counts of the Complaint.
“[A]mendments to complaints are liberally allowed under the Federal Rules
of Civil Procedure up to and even after trial, judgment, and appeal, in cases in which
there is no harm to the defendant from the tardy amendment.” United States v.
Security Pacific Business Credit, Inc., 956 F.2d 703, 707-08 (7th Cir. 1992). “[A]
party’s consent to try an unpleaded claim” is not implied “merely because evidence
relevant to a properly pleaded issue incidentally tends to establish an unpleaded
claim.” Reynolds v. Tangherlini, 737 F.3d 1093, 1106 (7th Cir. 2013). A court
should generally allow an amendment during trial “unless there is 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 the allowance of the amendment, or futility of amendment.” Orix
Credit Alliance, Inc. v. Taylor Machine Works, Inc., 125 F.3d 468, 480 (7th Cir.
1997).
Upon reviewing the record, the Court finds there was undue delay on the part
of the Plaintiffs. The Plaintiffs could have sought leave to amend at the time of the
final pretrial conference or at some point before the trial would begin approximately
one month later. The Defendants have also pointed to potential prejudice that would
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result if amendment were allowed—that being their inability to question the
Plaintiffs’ expert about certain issues related to the proposed claims.
Based on the Plaintiffs’ undue delay and possible prejudice that could result
to the Defendants if amendment of the complaint were allowed, the Court will deny
the Plaintiffs’ motion for leave to amend.
Ergo, the Plaintiffs’ motion for leave to file an amended complaint pursuant
to Rule 15(b) [d/e 214] is DENIED.
ENTER: August 30, 2019
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge
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