Garner v. The City of Country Club Hills, Illinois et al

Filing 186

ENTER MEMORANDUM OPINION AND ORDER: Before the Court are motions to amend complaints in two separate cases ( 162 in No. 11- cv-5164, and 120 in No. 11-cv-5766), which have been consolidated for pre-trial proceedings. For the reasons set forth below, both motions are granted. Signed by the Honorable Robert M. Dow, Jr on 12/20/2013. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
________________________________________
MICHELLE GARNER,

)
)
Plaintiff,
)
)
v.
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THE CITY OF COUNTRY CLUB HILLS,
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ILLINOIS, ET AL.,
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Defendants.
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________________________________________ )
WANDA COMEIN, HENRIETTA TURNER,
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PAULA A. SMOTHERS, ALISON BROTHEN, )
MARGARET A. SELTZNER,
)
)
Plaintiff,
)
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v.
)
)
THE CITY OF COUNTRY CLUB HILLS,
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ILLINOIS, ET AL.,
)
)
Defendants.
)
________________________________________ )

Case No.: 11-cv-05164
Judge Robert M. Dow, Jr.

Case No.: 11-cv-05766
Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Before the Court are motions to amend complaints in two separate cases ([162] in No. 11cv-5164, and [120] in No. 11-cv-5766), which have been consolidated for pre-trial proceedings.
For the reasons set forth below, both motions are granted.

I.

Background

On July 29, 2011, Michelle Garner (“Garner”) filed a complaint [1] in case No. 11-cv05164. On September 14, 2011, she filed a first amended complaint [31]. The complaint alleges
that the City of Country Club Hills, Illinois (“the City”) and seven Aldermen terminated her
employment with the City in violation of state law and her First Amendment rights. On August
22, 2011, Wanda Comein, Henrietta L. Turner, Paula A. Smothers, Alison Brothen, and
Margaret A. Seltzner (collectively, “the Comein Plaintiffs”) filed a similar complaint [1] in case
No. 11-cv-5766 against the City and two of the same Aldermen – Steven Burris (“Burris”) and
Vincent Lockett (“Lockett”) – alleging violations of their First and Fourteenth Amendment rights
and violations of Title VII of the Civil Rights Act of 1964. Plaintiffs in both cases allege that the
Aldermen terminated their employment with the City in retaliation for their support of the City’s
current mayor, Dwight Welch (“Mayor Welch”), in the previous election. Because of the
similarity of the allegations made by Garner and the Comein Plaintiffs, the cases were
consolidated for pre-trial proceedings.

Magistrate Judge Kim has been coordinating the

discovery efforts of the parties, including deposition schedules. See [137] in case No. 11-cv05164.

Both Garner and the Comein Plaintiffs allege that their jobs were eliminated by the
Aldermen at City Council finance committee meetings, at which the Defendants decided to fire
Mayor Welch’s supporters. Although Plaintiffs were told that their positions were terminated
because of budgetary constraints, Plaintiffs allege that that the real reason for the layoffs was
political retaliation in violation of their Constitutional rights. As one would expect, Plaintiffs
sought discovery related to these budget meetings, although their efforts purportedly were met

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with resistance from Defendants.

As a result, Plaintiffs filed several motions to compel

documentation that memorialized these meetings, including written minutes and audio
recordings. On August 7, 2012, for instance, Garner filed a motion to compel [103], in which
she highlighted the City’s refusal to comply with her Second Request for the Production of
Documents relating to these meetings. Judge Kim ordered Defendants to produce a table listing
all City Council, budget, and finance meetings during the relevant time period, and to indicate
whether or not written minutes or an audio recording of the meeting existed. After continued
resistance from Defendants, Garner filed a similar motion to compel [128] on February 21, 2013.
Garner withdrew this motion [131] after Defendants promised to comply with their discovery
obligations. Nevertheless, Garner then filed an emergency motion to compel and for sanctions
against Defendants [142] on March 13, 2013, after Defendants failed to make good on the
promises that spurred Garner’s withdrawal of her earlier motion to compel.

Discovery closed on July 30, 2013. Shortly before that, on July 12, 2013, Garner filed a
motion to amend ([162] in case No. 11-cv-5164) her complaint, seeking to add counts for
negligent evidence spoliation against Burris and the City. On September 4, 2013, the Comein
Plaintiffs filed a similar motion to amend ([120] in case No. 11-cv-5766), seeking to add the
same counts to their complaint. Plaintiffs assert that testimony elicited in depositions of City
employees, including Alderman Burris, that took place in late June and early July 2013 form the
basis of these claims. Specifically, Plaintiffs represent that Burris testified that he intentionally
destroyed at least one highly-relevant document. Moreover, several City employees, including
those tasked with the maintenance of City Council meeting minutes, were unable to explain why
minutes from numerous meetings were either missing or nonexistent, despite testimony that the
City has an affirmative obligation to maintain such minutes.

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Plaintiffs argue that these

revelations established the basis for their belief that Burris and the City negligently spoliated
evidence in this case, such that Plaintiffs could not have brought these claims in good faith prior
to these depositions.

Plaintiffs imply that if, instead, Defendants’ deposition testimony

suggested an innocent (non-negligent) explanation for the missing evidence, they would not have
filed these motions to amend.

In opposing Plaintiffs’ motions, Defendants argue that Plaintiffs were on notice of both
Defendants’ duty to maintain meeting minutes and of their potential breach of that duty well
before the June/July 2013 depositions. Defendants contend that state and federal laws requiring
the maintenance of these minutes put Plaintiffs on notice of Defendants’ obligation to maintain
them, and that their motions to compel demonstrate that Plaintiffs suspected a breach of this duty
as early as August 2012. Defendants ask the Court to deny Plaintiffs’ motions on account of
what they characterize as undue delay in bringing these motions, coupled with the fact that
discovery was closed (in the case of the Comein Plaintiffs) or nearly closed (in the case of
Garner) when they filed their motions to amend. Further, Defendants argue that they will suffer
prejudice if the Court allows Plaintiffs’ amendments. According to Defendants, because they
have litigated these cases for two years without allegations of evidence spoliation in mind, these
new allegations will necessitate additional discovery. Finally, Defendants contend that Garner’s
amendments should be denied, because she fails to state a claim and are, thus, futile.

Garner argues that her repeated motions to compel this evidence should have put
Defendants on notice of the potential for a spoliation claim and, in any event, Defendants easily
can obtain whatever additional information they may need to defend these claims, since the
witnesses with relevant information regarding the creation and maintenance of meeting minutes

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necessarily would be City employees. Finally, Garner argues that because employees of the City
have already admitted that “the City failed in its duty to preserve evidence,” she “does not
anticipate the need to depose any other witnesses or issue written discovery.” Similarly, the
Comein Plaintiffs contend that neither they nor Defendants should require additional discovery
because both “were free to explore this issue during discovery, and indeed Plaintiffs did ask
questions about lack of minutes . . . Defendant counsel likewise . . . did ask question about the
lack of minutes.”

II.

Analysis

Plaintiffs may amend their pleadings only with Defendants’ consent or the Court’s leave.
Fed. R. Civ. P. 15(a)(2). Courts should “use their discretion under Rule 15(a) to liberally grant
permission to amend pleadings so long as there is not undue prejudice to the opposing party or
undue delay, bad faith or dilatory motive on the part of the movant.”

Sides v. City of

Champaign, 496 F.3d 820, 825 (7th Cir. 2007). A motion to amend a pleading should also be
denied when the amendment would be futile. Brunt v. Serv. Employees Int’l Union, 284 F.3d
715, 720 (7th Cir. 2002)). “Delay on its own is usually not reason enough for a court to deny a
motion to amend.” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008). “But ‘the longer the
delay, the greater the presumption against granting leave to amend.’” Id. (quoting King v.
Cooke, 26 F.3d 720, 723 (7th Cir. 1994)). The party seeking to amend has the burden of
showing that undue prejudice will not result to the non-moving party. King, 26 F.3d at 724.
Ultimately, “the decision to grant or deny a motion to file an amended pleading is a matter purely
within the sound discretion of the district court.” Id. (quoting Brunt, 284 F.3d at 720).

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After considering the parties’ arguments, the Court will permit both Garner and the
Comein Plaintiffs to amend their complaints and add their claims for negligent evidence
spoliation. The Court does not believe – and Defendants do not suggest – that Plaintiffs filed
these motions in bad faith or with dilatory motive. Additionally, the Court concludes that
Plaintiffs have not unduly delayed in bringing these motions. Even if Defendants are correct that
state and federal laws put Plaintiffs on notice of Defendants’ duty to maintain these records,
Plaintiffs did not have a good faith basis that Defendants breached this duty until they deposed
the relevant witnesses in late June and early July of 2013. It was only then that Plaintiffs had a
basis for charging that Burris had intentionally destroyed at least one highly relevant document.
And it was then that Plaintiffs could confirm that (1) the Defendants’ failure to produce the
sought-after discovery was due to the nonexistence of the records and (2) the City lacked an
adequate justification for failing to maintain them. Plaintiffs may have suspected spoliation
when Defendants repeatedly failed to produce the evidence at issue during the discovery period,
but it would have been premature to bring a lawsuit over these claims based only on Defendants’
resistance and/or failure to produce the records. Garner brought her motion to amend on July 12,
2013, almost immediately following the relevant depositions. The Comein Plaintiffs waited two
months to bring their motion, which they filed on September 4, 2013. But the Court does not
consider this two-month delay to be “undue,” and regardless, the case law is clear that delay
alone usually is not enough to deny a motion to amend. See Soltys, 520 F.3d at 743.

The Court determines that amending the complaints will not cause Defendants undue
prejudice. Additional discovery may be needed, as Defendants contend, but that discovery will
be minimal, limited in scope, and readily available to Defendants through City employees.
Garner has represented that she does not anticipate the need for additional discovery, and the

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Court trusts that the Comein Plaintiffs take a similar position in light of their argument that
neither Plaintiffs nor Defendants should need additional discovery since both “were free to
explore this issue during discovery.”

The Court is unpersuaded by Defendants’ argument that Garner’s evidence spoliation
claims are futile.

The Illinois Supreme Court has set forth the elements necessary for a

spoliation of evidence claim, which must be stated under ordinary negligence theories. See Boyd
v. Travelers Ins. Co., 166 Ill.2d 188, 209 (Ill. 1995). Accordingly, those elements are (1) duty,
(2) breach, (3) causation, and (4) damages. Id. Defendants argue that Garner’s motion to amend
should be denied, because she has not sufficiently alleged causation and, therefore, her amended
claims would not survive a motion to dismiss. Defendants rely on Denton v. Northeast Ill.
Regional Commuter R.R. Corp., 2004 WL 1005790 at *4 (N.D. Ill. Apr. 26, 2004), a case that
denied a plaintiffs’ motion to amend their complaint to add evidence spoliation claims because
plaintiffs failed to allege that “but for the loss or destruction . . . [plaintiffs] would have had a
reasonable probability of succeeding in the underlying suit.” Put another way, the Denton court
determined that plaintiffs failed to plead causation because they did not allege that “the
unavailable evidence . . . was the key piece of evidence.” Id. Unlike in Denton, that is exactly
what the Garner and the Comein Plaintiffs allege here. At bottom, Plaintiffs believe that these
missing meeting minutes help prove their case by demonstrating that Plaintiffs were terminated
for improper reasons, and not because of budgetary constraints as the Defendants claim. Minutes
and recordings of these meetings are not just “the key” piece of evidence, but arguably the only
evidence of what transpired at these meetings, outside of the testimony of the Aldermen named
as Defendants.

As such, the Court determines that Plaintiffs’ have sufficiently pleaded

causation, and their claims are not futile.

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In the end, prejudice by way of additional discovery costs is the only countervailing
consideration before the Court in deciding whether to grant or deny the motions. But for the
reasons discussed above, any prejudice to the Defendants from granting the motions is not undue
and does not override the liberal thrust of Rule 15. Accordingly, Garner and the Comein
Plaintiffs’ motions to amend their complaints are granted.

To the extent the parties believe that additional discovery is needed, they are instructed to
confer among themselves, attempt to come to an agreed proposal on how to proceed, and advise
Magistrate Kim at their next status hearing on January 28, 2014.

III.

Conclusion

For the reasons stated above, Garner’s motion to amend her complaint ([162] in case No.
11-cv-5164) and the Comein Plaintiffs’ motion to amend their complaint ([120] in case No. 11cv-5766) are granted.

Dated: December 20, 2013

__________________________________
Robert M. Dow, Jr.
United States District Judge

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