Wajvoda v. Menards Inc
Filing
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OPINION AND ORDER, DENYING 16 MOTION to Amend Complaint filed by Barbara Wajvoda. Signed by Magistrate Judge Andrew P Rodovich on 8/14/12. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BARBARA WAJVODA,
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Plaintiff
v.
MENARDS, INC.,
Defendant
CIVIL NO. 2:11 cv 393
OPINION AND ORDER
This matter is before the court on the Motion For Leave to
Amend Complaint filed by the plaintiff, Barbara Wajvoda, on April
27, 2012.
For the reasons set forth below, the motion is DENIED.
Background
On October 12, 2011, the plaintiff, Barbara Wajvoda, filed a
complaint against Menards, Inc., to recover damages resulting
from an injury she suffered by slipping on ice on Menards’
property.
Wajvoda has learned that Mistic, LLC had a service
contract with Menards to perform snow and ice removal services at
the time her injury occurred.
Wajvoda petitions this court to
allow Mistic to be added as an additional defendant in this
action.
Discussion
Federal Rule of Civil Procedure 15(a) provides that "a party
may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given
when justice so requires."
Foman v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 230, 9 L.Ed.2d. 222 (1962).
This Circuit has recog-
nized that because the complaint merely serves to put the defendant on notice, it should be freely amended as the case develops,
as long as amendments do not unfairly surprise or prejudice the
Jackson v. Rockford Housing Authority, 213 F.3d 389,
defendant.
390 (7th Cir. 2000).
The decision of the court to deny leave to
amend a complaint is an abuse of discretion "only if 'no reasonable person could agree with the decision.'"
Winters v. Fru-Con,
Inc., 498 F.3d 734, 741 (7th Cir. 2007) (quoting Butts v. Aurora
Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004)); Ajayi v.
Aramark Business Services, 336 F.3d 520, 530 (7th Cir. 2003).
Amendments are freely allowed for electing a different
remedy than the one originally requested, and a party desiring to
change the demand for relief may do so under Rule 15(a).
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Wright & Miller, Federal Practice & Procedure §1474, at 547 (2d
ed. 1990).
However, a motion to amend is more likely to be
denied if it takes place at a relatively late stage in the
proceedings.
Aldridge v. Forest River, Inc., 635 F.3d 870, 875
(7th Cir. 2011); Winters, 498 F.3d at 741.
See also James v.
McCaw Cellular Communications, Inc., 988 F.2d 583 (5th Cir. 1993)
(holding that the district court did not abuse its discretion in
denying plaintiff’s motion to amend where the motion was filed
almost 15 months after the original complaint, ten months after
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the joinder deadline, five months after the deadline for amendments, and three weeks after the defendant filed motion for
summary judgment).
The moving party bears the burden to show
some valid reason for neglect and delay in seeking to amended the
complaint.
Butts, 387 F.3d at 921.
See also NL Industries, Inc.
v. GHR Energy Corp., 940 F.2d 957 (5th Cir. 1991) (holding that
the court did not abuse its discretion in denying a motion for
leave to file second amended complaint where the plaintiff sought
to amend its pleading two years after it first brought defendant
into the litigation and after the defendant had requested summary
judgment, but the plaintiff provided no good reason for not
acting sooner).
Leave to amend properly may be denied at the district
court's discretion for "undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of
amendment, etc."
Foman, 371 U.S. at 182, 83 S.Ct. at 230.
"The
court may deny a motion to amend based, at least in part, on the
fact that the motion to amend was filed after the final deadline
set by the court for the filing of amendments."
Pleading §779 (2007).
61A Am.Jur.2d
See Avatar Exploration, Inc. v. Chevron,
U.S.A., Inc., 933 F.2d 314 (5th Cir. 1991) (finding no abuse of
discretion where the motion to amend was filed after the final
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deadline set by the court for filing amendments and amendment of
pleadings under the circumstances would provide no benefit to the
moving party).
Menards
opposes Wajvoda’s motion as untimely.
Wajvoda
waited six months after her complaint was filed to petition this
court to add Mistic as an additional defendant.
During this
period, Menards had participated in significant discovery and
firmly established its position against Wajvoda’s claim.
By
allowing Mistic to be added, Menards would be unduly burdened by
having to engage in a more extensive discovery process, as well
as reexamine its position relative to the defense of this claim.
Additionally, by allowing Wajvoda to amend her complaint, this
court would be permitting Wajvoda to defeat the requisite diversity in this matter, leaving this court without subject matter
jurisdiction.
Wajvoda had the burden to show a reason for the
delay in seeking an amendment, and as no legitimate reason was
given by Wajvoda for why she waited six months to amend her
complaint, Wajvoda’s motion is deemed not timely.
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For the foregoing reasons, the Motion for Leave to Amend
Complaint filed by the plaintiff, Barbara Wajwoda, on April 27,
2012, is DENIED.
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ENTERED this 14th day of August, 2012
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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