Fisher et al v. Your Friends & Neighbors Inc et al
Filing
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OPINION AND ORDER GRANTING 100 Second MOTION to Amend 1 Complaint, 62 Amended Complaint, filed by Russell Chism, Jill Fisher. Clerk DIRECTED to show Exhibit 1 to motion filed as the second amended complaint. Dfts shall have 21 days from the date of this order to file their response to the motion for class certification. Any reply shall be filed w/in 21 days of receipt of the response. Signed by Judge Robert L Miller, Jr on 7/25/2011. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JILL FISHER and RUSSELL CHISM, )
on Behalf of Themselves and Others
Similarly Situated,
Plaintiffs
v.
YOUR FRIENDS & NEIGHBORS, INC.,
et al.,
Defendants
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Case No. 1:10-CV-38 RM
OPINION and ORDER
Plaintiffs Jill Fisher and Russell Chism, former employees of Your Friends
& Neighbors, Inc., brought suit against the defendants on behalf of themselves
and all past and/or present employees of Your Friends & Neighbors, and/or
participants in the plan of insurance sponsored and/or administered by the
defendants, to recover damages incurred as a result of the defendants’ alleged
failure to make contributions to the corporation’s self-insured health insurance
plan, to notify the employees and plan participants of non-payment, and to
reimburse the plan participants for covered medical expenses. The original
complaint (filed in February 2010) was amended in November 2010 to add
defendants Ernest Beal, Jr., Rosewater, Inc., and Your Friends & Neighbors of
Georgia, Inc., and asserts claims under federal and state law for violations of
ERISA, IND. CODE 22-2-6-2, IND. CODE 22-2-12 et. seq., breach of fiduciary duty,
fraud, constructive fraud, and conversion. The plaintiffs’ second motion to amend
the complaint, seeking to add Sophia Tabler-Adams as a plaintiff and prospective
class representative, now pends before the court. For the reasons that follow, the
court grants the motion to amend.
Fed. R. Civ. P. 15(a)(2) provides that courts “should freely give leave when
justice so requires.” Whether to grant a motion to amended is discretionary,
Johnson v. Cypress Hill, 641 F.3d 867, 872 (7th Cir. 2011); Hukic v. Aurora Loan
Services, 588 F.3d 420, 432 (7th Cir. 2009), but “[i]n the absence of an apparent
or declared reason — such as undue delay, bad faith or dilatory motive...,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice . . ., futility of amendment, etc. — the leave sought should, as the rules
require, be ‘freely given.’” Foreman v. Davis, 371 U.S. 178, 182 (1962); see also
Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 848-49 (7th Cir.
2002). “[W]hile delay on its own is usually not reason enough for a court to deny
a motion to amend, Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792-93
(7th Cir. 1994), the ‘longer the delay, the greater the presumption against granting
leave to amend.’” Johnson v. Cypress Hill, 641 F.3d at 872 (quoting King v. Cooke,
26 F.3d 720, 723 (7th Cir. 1994)). See also Soltys v. Costello, 520 F.3d 737, 743
(7th Cir. 2008).
The defendants contend that the plaintiffs unduly delayed filing their
motion, and that adding a plaintiff and new class representative at this stage of
the proceedings would be unduly prejudicial because it could substantially alter
the mediation process, unfairly deprive defendants of the chance to prepare for
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mediation, delay disposition of the motion for class certification, and increase the
burden of conducting investigations and reviews. The court disagrees.
Repeated attempts have been made to set the case management deadlines
required by FED. R. CIV. P. 16 and to keep this case on track, with little success.
By the parties’ agreement, the deadline for joining additional parties and
amending the pleadings was deferred until after the ruling on the motion for class
certification (see Doc. No. 28), the discovery deadline was stayed (see Doc. No.
104), and the scheduling conference (originally set for October 4, 2010) has been
continued four times (see Doc. Nos. 54, 55, 83, 88, 96, 99, 107 and 108). In each
instance, the parties said additional time was needed because they were engaged
in the discovery process and settlement negotiations. While the parties indicated
in their September 2010 status report [Doc. No. 54] that they had selected a
mediator and were working with him to secure available mediation dates, the first
mediation wasn’t scheduled until June 15, 2011, and only after the court ordered
that mediation be completed by July 5. That session was “suspended to allow the
parties to pursue further negotiations” [Doc. No. 105]; and on June 16, 2011,
Magistrate Judge Cosbey stayed all proceedings and deadlines (including the
discovery deadline and the motion for class certification response deadline) to
allow the parties an opportunity to negotiate further. [Doc. No. 104].
After attempts to obtain information about the defendants’ former
employees and plan participants (including Ms. Tabler-Adams) through discovery
directed to the defendants failed, the plaintiffs served a third party discovery
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request on Core Benefits (the plan administrator) in January 2011. Core Benefits
provided a spreadsheet identifying plan participants with outstanding unpaid
claims in late March, and in late April 2011 the defendants submitted their
remaining responses to the plaintiffs September 2010 discovery requests. The
second motion for leave to amend the complaint was filed soon after that, on May
19, seeking to add Ms. Tabler-Adams as a plaintiff and prospective class
representative. The factual bases for the complaint remains the same, and the
plaintiffs don’t seek to add new claims or new theories of liability. No scheduling
deadlines preclude the plaintiffs from doing so, discovery and settlement
negotiations are ongoing, and a trial date has yet to be set. From a procedural
standpoint, this case is in its infancy. The delay between commencement of this
action and filing of the second motion to amend is significant, but it isn’t
attributable solely to the plaintiffs and isn’t unduly prejudicial to the defendants.
Accordingly, the court GRANTS the plaintiffs’ second motion to amend the
complaint [Doc. No. 100] and DIRECTS the Clerk to show Exhibit 1 to the motion
filed as the second amended complaint. The defendants shall have 21 days from
the date of this order to file their response to the motion for class certification
[Doc. No. 31]. Any reply shall be filed within 21 days of receipt of the response.
SO ORDERED.
ENTERED:
July 25, 2011
/s/ Robert L. Miller, Jr.
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Judge
United States District Court
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