Bova et al v. Harrison et al

Filing 28

ORDER granting 23 Motion to Strike; denying 26 Motion to Amend/Correct. Plaintiffs' Amended Complaint (Doc. 22 ) is STRICKEN. Signed by Magistrate Judge Stephen C. Williams on 11/15/2012. (anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAYNE BOVA and KELLY BOVA,
Plaintiffs,
vs.
PAUL JOSEPH HARRISON and SHOW
ME HOME DELIVERY,

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Case No. 12–cv–86–DRH–SCW

Defendants.

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
Before the Court is Defendants’ Motion to Strike Plaintiffs’ Amended Complaint (Doc.
23). Specifically, Defendants seek to strike Plaintiffs’ recently filed Amended Complaint (Doc. 22)
because Plaintiff failed to seek leave to file the Complaint and because the deadline for filing such an
amendment expired on July 3, 2012. In Response to Defendants’ motion, Plaintiffs have filed a Motion
to File First Amended Complaint at Law and Response to Defendant’s Motion to Strike Amended
Complaint (Doc. 26). Plaintiffs indicate that the failure to seek leave before filing their Amendment
Complaint was inadvertent on their part. Further, Plaintiffs argue that their request to seek leave to
amend is not untimely because the case has only recently been presented for a settlement conference
and Defendants would not be prejudiced by the additions.
Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 15(a)(1) “[a] party may amend its
pleading once as a matter of course” before a responsive pleading is served. Here, the time for Plaintiffs
to have filed an amended complaint as a matter of course has long since past. The Scheduling and
Discovery Order indicated that Plaintiffs had until July 3, 2012 in which to file an amended pleading.
Therefore, Plaintiffs must now seek to amend their Complaint pursuant to Rule 15(a)(2) which allows

a party to “amend its pleading only with the opposing party’s written consent or the court’s leave.” The
Court notes that Rule 15(a)(2) further states that amendments should be freely granted “when justice
so requires.” As Defendants have objected to Plaintiffs’ amendments, the Court would have to grant
Plaintiffs leave before they may file their Amended Complaint.
The decision to grant a plaintiff leave to amend a Complaint under Rule 15(a)(2) is
within the sound discretion of the Court. Pu g h v . T rib u n e Co ., 521 F.3d 686, 698 (7th Cir. 2008);
O rix Cre d it Allian c e v . T ay lo r Mac h . Wo rks , 125 F.3d 468, 480 (7th Cir. 1997). However, leave
to amend may be denied for several reasons including: “undue delay, bad faith, dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party..., [and the] futility of the amendment.” B arry Av iatio n , In c . v . Lan d
O ’Lake s Mu n ic ip al Airp o rt Co m ’n , 388 F.3d 682, 687 (7th Cir. 2004); Gu id e v . B MW Mo rtg ag e ,
LLC, 377 F.3d 795, 801 (7th Cir. 2004); Kn ap p v . Wh itake r, 757 F.2d 827, 849 (7th Cir. 1985)
(court should consider prejudice to non-moving party); Fo rm an v . Dav is , 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962); O rix Cre d it Allian c e , 125 F.3d at 480. A court may also deny leave
to amend if the proposed amendment would be futile, meaning that it would not survive a motion to
dismiss. Se e So lty s v . Co s te llo , 520 F.3d 737, 743 (7th Cir. 2008); Cre s tv ie w Villag e Ap ts . v . U.S.
De p ’t o f Ho u s in g & Urb an De v ., 383 F.3d 552, 558 (7th Cir. 2004); B arry Av iatio n In c ., 377 F.3d
at 687 and n. 3 (collecting cases). Further, if a plaintiff seeks to add entirely new claims or parties,
then the new claims must be related in some way to the claims currently in the case. Se e FED .R.CIV.P.
20 (“All persons...may be joined in one action as defendants if there is asserted against them
jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of law or
fact common to all defendants will arise in the action.”).

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The Court finds that Plaintiffs’ proposed amendments are untimely and would
prejudiced Defendants. Here, Plaintiffs seek to amend their Complaint in order to add two new claims
against the Defendants, namely additional allegations of willful and wanton conduct. Plaintiffs also seek
to add a prayer for punitive damages. Defendants argue that the additions are untimely. The deadline
for filing amendments was July 3, 2012. Further, Defendants point out that Plaintiffs had the necessary
information to add the new theories of liability in their possession, at the very latest, on March 28, 2012
when Defendants disclosed Harrison’s citation and produced a copy of the Traffic Crash Report.
Plaintiffs do not deny that they obtained the information at that time . Yet, they waited until October
17, 2012, over three months after the deadline for filing amended complaints had expired and well over
six months after obtaining the necessary discovery from Defendants, to file their Amended Complaint.
Plaintiffs fail to offer any justification for the undue delay in filing their Amended Complaint. In fact,
Plaintiffs had sufficient time to conduct discovery and add the additional claims after receiving the
evidence on March 28, 2012 and prior to the expiration of amendment deadline on July 3, 2012. Yet,
now they seek to amend their Complaint with new allegations only a few weeks prior to the close of
discovery.1 Plaintiffs’ request simply comes too late in the litigation, and would be highly prejudicial
to Defendants who now have no time to conduct further discovery regarding the new claims. Se e
Jo h n s o n v . Cy p re s s Hill, 641 F.3d 867, 872 (7th Cir. 2011) (Seventh Circuit upheld denial of leave
to amend where the amendments came seven months after the plaintiff learned of the facts
leading to the new complaint and the new legal theories would require additional discovery after
discovery had already closed); Hu kic v . Au ro ra Lo an Se rv ic e s , 588 F.3d 420, 432 (7th Cir. 2009)
(denying amendment to complaint when request came three days before the close of discovery

1

In fact, discovery closed on November 6, 2012. However, Plaintiff filed their Amended
Complaint approximately three weeks prior to the close of discovery.
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and added several new legal theories which had not been contemplated by defendants when
conducting discovery on original claim). Thus, the Court finds that Plaintiffs’ motion for leave to
amend is untimely and, accordingly, the Court DENIES Plaintiffs’ motion for leave to amend (Doc.
26), GRANTS Defendants’ motion to strike (Doc. 23) and STRIKES Plaintiffs’ Amended Complaint
(Doc. 22).
IT IS SO ORDERED.
DATED: November 15, 2012.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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