Koch v. Jerry W Bailey Trucking Inc et al

Filing 92

OPINION AND ORDER DENYING 83 MOTION to Amend/Correct Complaint by Plaintiffs Daniel Koch, Johnny Ray Wells, Jr. Signed by Magistrate Judge Susan L Collins on 6/7/16. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DANIEL KOCH, on Behalf of Himself and
All Others Similarly Situated, et al.,
Plaintiffs,
v.
JERRY W. BAILEY, et al.,
Defendants.

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) CAUSE NO. 1:14-cv-00072-JVB-SLC
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OPINION AND ORDER
Plaintiff Daniel Koch, on behalf of himself and a class consisting of persons who were
employed as truck drivers by Jerry W. Bailey Trucking, Inc. (“JWBT”), filed this collective
action under the Fair Labor Standards Act (“FLSA”) on March 7, 2014, seeking to collect unpaid
overtime wages.1 (DE 1). Now before the Court is Plaintiffs’ motion to amend (DE 83) filed on
March 21, 2016, seeking to: (1) add as a named plaintiff George Marlow, who consented to opt
in to the action on March 21, 2014 (DE 11-2); and (2) assert a retaliation claim on Marlow’s
behalf based on events that occurred after he opted in to this action. (DE 83).
Defendants JWBT, Jerry W. Bailey, and Linda L. Bailey (collectively, the “Defendants”)
filed a response brief in opposition to the motion, arguing that the motion should be denied due
to Plaintiffs’ undue delay in seeking leave to amend, and because the amendment, if allowed,
would result in prejudice to Defendants and duplicative litigation. (DE 84). Plaintiffs did not
file a reply to Defendants’ arguments, and their time to do so has now passed.
For the following reasons, Plaintiffs’ motion to amend will be DENIED.

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A second named Plaintiff, Johnny Ray Wells, Jr., was added on March 19, 2014. (DE 10).

A. Procedural Background
Koch filed this collective action against Defendants on March 7, 2014, and then amended
his complaint 10 days later, on March 17, 2014. (DE 1; DE 8). On March 21, 2014, Marlow’s
notice of consent to join the action was filed. (DE 11-2). On May 29, 2014, this Court held a
preliminary pretrial conference and set a discovery deadline of December 31, 2014, but deferred
setting deadlines for seeking leave to file any amendments to the pleadings. (DE 25; DE 26).
On January 15, 2015, the undersigned Magistrate Judge observed that the discovery period had
concluded. (DE 40).
On June 24, 2015, pursuant to a stipulation by the parties (DE 58), District Judge Joseph
Van Bokkelen granted class certification under Federal Rule of Civil Procedure 23 and
preliminary certification as a collective action under the FLSA (DE 59). On July 20, 2015,
Judge Van Bokkelen approved proposed notices to class and potential collective action members
(DE 61), and on August 25, 2015, he entered an Order amending the class definitions (DE 68).
On March 15, 2016, District Judge Van Bokkelen held a status conference and noted that,
despite the expiration of the discovery deadline, Plaintiffs were still anticipating providing
certain discovery responses to Defendants; thus, Judge Van Bokkelen recommended that the
undersigned Magistrate Judge conduct a status conference in 30 days. (DE 82).
On March 21, 2016, Plaintiffs filed the instant motion to amend. (DE 83). The next day,
Marlow filed a separate suit against Defendants, No. 1:16-cv-00097-TLS-SLC, advancing the
same FLSA retaliation claim as in this suit.
At a status conference on June 6, 2016, the parties reported that discovery is nearly
complete, and thus, the Court set a final discovery deadline of August 31, 2016. (DE 91). The

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parties agreed that adding the proposed retaliation claim would require substantial additional
discovery.
B. Standard of Review
Under Federal Rule of Civil Procedure 15(d), “the court may, on just terms, permit a
party to serve a supplemental pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.” In making this determination, the
court analyzes the same factors as those used for motions to amend under 15(a). See Glatt v.
Chi. Park Dist., 87 F.3d 190, 194 (7th Cir. 1996); Masonite Corp. v. Craftmaster Mfg., Inc., No.
09 cv 2131, 2011 WL 1642518, at *1 (N.D. Ill. Apr. 29, 2011). That is, “courts may deny an
amendment for undue delay, bad faith, dilatory motive, prejudice, or futility.” Ind. Funeral Dirs.
Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003); see also Foman v. Davis,
371 U.S. 178, 182 (1962). Ultimately, the decision to grant or deny leave to file a supplemental
pleading is within the court’s discretion. See Twin Disc, Inc. v. Big Bud Tractor, Inc., 772 F.2d
1329, 1338 (7th Cir. 1985); Wilson v. Gipson, No. 3:94-cv-891RP, 1995 WL 476695, at *2
(N.D. Ind. July 20, 1995).
C. Discussion
In the proposed amended complaint, Plaintiffs allege that Marlow quit his employment
with Defendants in October 2012 and went to work for J&T Trucking, a subcontractor of
Defendants, in May 2013. (DE 83-1 ¶¶ 61-64). Plaintiffs further allege that when Defendants
learned that Marlow had opted in to this collection action, Defendants retaliated against Marlow
by instructing J&T Trucking that he was no longer permitted to work on any jobs connected with
Defendants. (DE 83-1 ¶¶ 67-68).

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Defendants argue that leave to amend to add Marlow’s retaliation claim should be denied
because Plaintiffs delayed nearly two years in seeking leave to amend, and if allowed, the
amendment would result in prejudice to Defendants. Defendants additionally state that Marlow
has already filed a separate lawsuit advancing his retaliation claim, and thus, granting leave to
amend to add the claim in this suit would be duplicative.
With respect to undue delay, Marlow consented to join this suit in March 2014. Plaintiffs
allege that Defendants learned “[s]hortly thereafter” that Marlow had joined the suit and that
Defendants “[s]ometime thereafter” informed J&T Trucking that Marlow was not permitted to
work on Defendants’ jobs. (DE 83-1 ¶¶ 66-68). Defendants point out that based on these
allegations, Marlow has been suffering from retaliation for nearly two years. Plaintiffs,
however, offer no justification for delaying nearly two years in filing the motion to amend. See
Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995) (denying leave to amend where
plaintiff provided no explanation as to why the amendment did not take place sooner, and where
the delay in filing the motion to amend would cause delay and burden the parties); J.P. Morgan
Chase Bank, N.A. v. Drywall Serv. & Supply Co., Inc., 265 F.R.D. 341 (N.D. Ind. Feb. 3, 2010)
(denying motion to amend filed two years after the initial complaint).
Discovery in this case is coming to a close, and the amendment adds a different theory
and relies on a new set of facts. In that regard, the parties reported at a recent status conference
that adding the retaliation claim would require substantial additional discovery, including
scheduling several depositions. As such, the Court concludes that affording Plaintiffs leave to
amend after their undue delay would result in prejudice to Defendants by disrupting the progress
of this class and collective action. See George v. Kraft Foods Global, Inc., 641 F.3d 786, 789-91

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(7th Cir. 2011) (affirming the district court’s denial of a motion to amend where discovery was
set to conclude in the next few months and where allowing the amendment would have
substantially disrupted the progress that had been made regarding class certification). Moreover,
Marlow has already filed a separate lawsuit against Defendants advancing his retaliation claim.
Allowing the amendment in this suit would result in duplicative litigation.
In sum, because Plaintiffs offered no reason for their undue delay in seeking to add the
retaliation claim, and because the addition of the claim would result in prejudice to Defendants
and duplicative litigation, Plaintiffs’ motion to amend will be DENIED.
D. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Amend Complaint (DE 83) is DENIED.
SO ORDERED.
Entered for this 7th day of June 2016.
/s/ Susan Collins
Susan Collins,
United States Magistrate Judge

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