Glodo et al v. CPG International, Inc. et al
Filing
40
ORDER granting 34 Motion to Amend/Correct; denying 30 Motion to Stay. Plaintiffs have until October 2, 2013 in which to file Amended Complaint. Signed by Magistrate Judge Stephen C. Williams on 9/25/2013. (anj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOM GLODO and WILLIAM MURDOCH,
individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.
CPG INTERNATIONAL, INC. and AZEK
BUILDING PRODUCTS, INC.,
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)
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Case No. 13-cv-402-DRH-SCW
Defendants.
MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
Before the Court is a Motion for Leave to File Amended Complaint (Doc. 34) filed by
Plaintiffs. Plaintiffs seek to amend their Complaint in order to amend the class definition and add
additional allegations regarding AZEK railing. Defendants have filed a Response in opposition to the
motion (Doc. 38). Plaintiffs have filed a Reply (Doc. 39). Defendants have also filed a Motion to
Stay Discovery (Docs. 30 & 31) pending the Court’s resolution of the pending Motion to Dismiss.
Plaintiffs have filed a Response (Doc. 36) in opposition to that motion. The Court rules as follows:
A.
Motion to Amend
Plaintiffs have filed a motion for leave to file amended complaint (Doc. 34) in order to
further define the proposed class. Defendants oppose the motion, arguing that the amendment
would be futile, as Plaintiff Glodo has no allegations of actual damages. Defendants argue that
because they provided Plaintiff Glodo with free replacement AZEK Rails when his Rails experienced
issues, Plaintiff Glodo has no damages.
Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 15(a)(1) “[a] party may
amend its pleading once as a matter of course” before a response pleading is served. The Court notes,
however, that Defendants have filed a Motion to Dismiss pursuant to Rule 12(b)(6), for failure to state
a claim. Thus, Plaintiffs must now seek to further amend the 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 filed a response in opposition to the
motion, the Court would have to grant Plaintiffs leave in order for them to file their Amended
Complaint.
The decision to grant a plaintiff leave to further amend a Complaint under Rule
15(a)(2) is within the sound discretion of the Court. Pugh v. Tribune Co., 521 F.3d 686, 698 (7th
Cir. 2008); Orix Credit Alliance v. Taylor Mach. Works , 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.” Barry
Aviation, Inc. v. Land O’Lakes Municipal Airport Com’n , 388 F.3d 682, 687 (7th Cir. 2004);
Guide v. BMW Mortgage, LLC , 377 F.3d 795, 801 (7th Cir. 2004); Knapp v. Whitaker, 757 F.2d
827, 849 (7th Cir. 1985) (court should consider prejudice to non-moving party); Forman v.
Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2s 222 (1962); Orix Credit Alliance , 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. See Soltys v. Costello, 520 F.3d 737, 743 (7th Cir.
2008); Crestview Village Apts. v. U.S. Dep’t Of Housing & Urban Dev., 383 F.3d 552, 558 (7th
Cir. 2004); Barry Aviation Inc ., 377 F.3d at 687 and n. 3 (collecting cases).
While Defendants argue that Plaintiffs’ proposed Amended Complaint would be
futile, they have failed to show the futility of the amendment. Defendants argue that the proposed
amendment is futile because Plaintiffs have not alleged damages. Specifically, Defendants argue that
since Plaintiff Glodo points out that both times his AZEK Rail experienced issues, AZEK provided
him with free replacement Rail, Glodo has failed to allege that he suffered any damages. However, as
Plaintiff Glodo points out, Glodo alleges damages in the form of the cost of replacement, remediation,
and the price difference between what he paid and what he received. The Amended Complaint
alleges that the Rail Glodo and others received was not as valuable as it should have been because it
was defective. Although AZEK argues that they replaced the defective Rail, they fail to consider that
the Rail replaced by AZEK was also allegedly defective and not of the value of the price paid by
Plaintiff. Thus, the Court finds that Plaintiffs have adequately alleged damages which would survive a
motion to dismiss and, thus, Plaintiffs’ Amended Complaint is not futile. Accordingly, the Court
GRANTS Plaintiff’s motion for leave to amend (Doc. 34). Plaintiffs shall have to and including
October 2, 2013 in which to file their Amended Complaint.
B.
Motion to Stay
Defendants have also filed a Motion to Stay Discovery (Docs. 30 & 31) in which they
seek to stay discovery pending resolution of their motion to dismiss (Docs. 13 & 14). The Court first
notes that Defendants’ motion to dismiss seeks to dismiss Plaintiff Glodo as a class representative,
dismiss the nationwide allegations, or transfer this matter to the United States District Court for the
District of New Jersey. Plaintiffs have filed a Response (Doc. 36) in opposition to the motion. To
the extent that Defendants’ motion to dismiss is still viable, 1 the Court DENIES Defendants’ motion
to stay discovery pending resolution of the motion to dismiss.
1
As Plaintiffs have been granted leave to file an Amended Complaint which purportedly addresses some
of the concerns in the motion to dismiss, namely by amending the class definition and allegations, the
district judge presiding in this case may determine that those amendments make the motion to dismiss
moot. Such determination, however, is left to the discretion of the district judge after a review of the
Amended Complaint. Defendants have also indicated that they would file a renewed motion to dismiss
once the Amended Complaint is filed, thus the motion to stay is not moot.
The power to issue a stay is “incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.”
Jackson v. Van Kampen Series Fund, Inc. , Nos. 06-cv-944-DRH,
06-cv-994-DRH, 2007 WL 1532090, at * 2 (S.D. Ill. May 24, 2007) (quoting Landis v. North
Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (internal citations omitted)). The
decision to issue a stay rests within the district court’s discretion, subject to the requirement that such
a discretion be exercised in a manner that is consistent with equity and judicial economy. See Radio
Corp. of Am. v. Igoe , 217 F.2d 218, 220 (7th Cir. 1955)(citing Landis , 299 U.S. at 354);
Patterson v. Avery Dennison Corp ., 281 F.3d 676, 681 (7th Cir. 2002) (broad discretion in
matters of discovery); Cherokee Nation of Okla. v. United States , 124 F.3d 1413, 1416 (7th Cir.
1997) (when and how to stay proceedings within sound discretion of the court); Semien v. Life
Ins. Co. of N. Am ., 436 F.3d 805, 813 (7th Cir. 2006) (broad discretion in controlling
discovery); George v. Kraft Foods Global, Inc ., No. 06-cv-798-DRH, 2006 WL 3842169, at *1
(S.D.Ill. Dec. 22, 2006). A stay of discovery is generally only appropriate when a party raises a
potentially dispositive threshold issue. United States Catholic Conference v. Abortion Rights
Mobilization, Inc. , 487 U.S. 72, 79-80, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988); Landstrom v. Ill
Dep’t of Children & Family Servs., 892 F.2d 670, 674 (7th Cir. 1990) (qualified immunity
should be decided before allowing discovery).
Here, the Court finds that a stay is not in the interest of judicial economy in this case as
it appears to this Court that Plaintiffs have articulated a valid theory of liability which would survive a
motion to dismiss. Further, Plaintiffs have sought to amend their Complaint to cure some of the
defects in their allegations raised by Defendants in the motion to dismiss. However, even if the
district court ultimately deemed Plaintiffs’ theory unsound and dismissed part of the Amended
Complaint or transferred the remainder of the Complaint as requested by Defendants, the case would
still be viable in some fashion, as Defendants acknowledge. Defendants acknowledge in their motion
to dismiss that Plaintiff Godo could pursue an individual claim for defective Rail and also ask that the
class claims be transferred to the District of New Jersey.
Thus, allowing discovery to proceed in this
case would not be fruitless as Defendants’ motion to dismiss is not dispositive of the entire case.
Accordingly, the Court DENIES Defendants’ motion to stay (Docs. 30 & 31).
IT IS SO ORDERED.
DATED: September 25, 2013.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge
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