D5 Ironworks, Inc et al v. Local 395 Ironworkers, AFL-CIO

Filing 291

OPINION AND ORDER: The Court GRANTS Local 395 Ironworkers' Motion for Leave to File an Amended Answer to Plaintiffs' Amended Complaint 251 . Defendant Local 395 Ironworkers shall file its Amended Answer to Plaintiffs' First Amended Complaint (ECF No. 251 , at 6-46) as a stand-alone document on the electronic case docket upon receipt of this Opinion and Order. Signed by Magistrate Judge Joshua P Kolar on 7/20/2021. (bas)

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 1 of 15

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
D5 IRONWORKS, RICHARD LINDER,
SCOTT KUDINGO, BILL TONNESON,
and HARRY HARPER,
Plaintiffs,
v.
LOCAL 395 IRONWORKERS, AFL-CIO,
THOMAS WILLIAMSON, SR, JEFFREY
VEACH, and KNOWN AND UNKNOWN
CO-CONSPIRATORS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CAUSE NO.: 2:16-CV-200-PPS-JPK

OPINION AND ORDER
This matter is before the Court on a Motion for Leave to File an Amended Answer to the
Plaintiffs’ Amended Complaint [DE 251], filed by Defendant Local 395 Ironworkers (“Local
395”). Local 395 requests leave to file an Amended Answer (attached as Exhibit 1 to the motion),
asserting its lack of prior knowledge of the involvement of the two individual Defendants (Thomas
Williamson, Sr. and Jeffrey Veach) in the January 2016 assault alleged in Plaintiffs’ Amended
Complaint, which the individual Defendants later admitted in plea agreements to related criminal
charges. (ECF No. 251, ¶¶ 3-6). Plaintiffs filed a Response in Opposition to the Motion (ECF No.
253), Local 395 filed a Reply (ECF No. 258), and following Plaintiffs’ Motion for Leave to File a
Sur-Reply (ECF No. 268), Plaintiffs filed a Sur-Reply (ECF No. 275), and Local 395 filed a SurRebuttal (ECF No. 278). Having considered the parties’ filings, the Court now GRANTS Local
395’s Motion for Leave to File an Amended Complaint [DE 251] for the following reasons.
FACTUAL AND PROCEDURAL BACKGROUND
As alleged in Plaintiffs’ Amended Complaint, Defendant Local 395 is a labor organization
within the meaning of the National Labor Relations Act; and at the time of the events alleged in

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 2 of 15

the Complaint, Defendants Veach and Williamson were its Business Agents, and Veach was also
its President. (See Proposed Answer, ECF No. 251, ¶¶ 11-13). Plaintiff D5 Ironworks (“D5”) is
engaged in the fabrication, erection, and installation of steel products on construction projects in
Indiana, Illinois, and Wisconsin, and is not a party to any collective bargaining agreement. (Id. at
¶ 5). According to the Complaint, Defendant Williamson visited one of D5’s jobsites on the
morning of January 6, 2016, and “demanded that D5 execute a labor agreement with Local 395
and employ only members of Local 395,” but D5’s owner, Plaintiff Jeffrey Lindner, refused and
instructed Williamson to leave the jobsite. (Id. at ¶¶ 15-17). Williamson then allegedly approached
Pastor Atkinson in the offices of the Dyer Baptist Church across the street, which owned the D5
jobsite project, and attempted “to coerce, restrain and convince Pastor Atkinson to replace D5 for
a contractor having an agreement with Local 395.” (Id. at ¶ 17).
When these actions failed to produce a labor agreement, Williamson allegedly returned to
the D5 jobsite the next morning; Lindner again instructed him to leave; a verbal disagreement
ensued; and Williamson “placed his hands upon the chest of Plaintiff Lindner.” (Id. at ¶ 18).
Following this confrontation, Williamson allegedly left the jobsite warning Lindner that D5’s
failure to accept a labor agreement would result in Williamson taking things “Old School.” (Id. at
¶ 20). According to the Complaint, later that day at about 3:00 p.m., approximately twelve men
associated with Local 395 then appeared at the D5 jobsite, including Williamson and Veach. (Id.
at ¶ 21). These men allegedly rushed the jobsite, picked up pieces of wood used for shipping steel
located on the jobsite, and physically attacked Plaintiffs Scott Kudingo, Joe Weil, and others on
the jobsite. (Id. at ¶¶ 23-30). According to the Complaint, this attack lasted until about 3:05 p.m.
on January 7, 2016, and involved the men associated with Local 395 clubbing, kicking, and beating
Kudingo, Weil, and others, while Lindner scaled a construction fence to call authorities. (Id.).

2

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 3 of 15

Based on these allegations, Plaintiffs asserted a federal claim under the Labor Management
Relations Act (LMRA) against Local 395 (Count I), various physical and emotional state law torts
relating to the assaults on D5 workers against all Defendants (Counts III-XVI), various economic
state law torts and civil conspiracy against all Defendants (Count II, XVIII-XX), and failure to
supervise against Local 395, Williamson, and Veach (Count XVII). (Amended Compl., ECF No.
67). In Answers filed in February and March 2017, Veach and Williamson asserted their Fifth
Amendment rights against self-incrimination in response to allegations concerning their
appearances at the D5 jobsite in January 2016, in light of various state and federal investigations
relating to those events (ECF Nos. 77 and 101, at ¶¶ 15-31), and Local 395 denied sufficient
information to form a belief as to the truth of those allegations. (ECF No. 75, ¶¶ 15-31). A year
and a half later, in August 2018, Veach and Williamson were each indicted for extortion conspiracy
and attempted extortion in violation of the Hobbs Act in connection with the attack on D5 workers
on January 7, 2016. (ECF No. 222-1). Then on October 12, 2018, following a request by the
government to intervene for purposes of seeking a stay of these proceedings while the criminal
case against Veach and Williamson proceeded, the District Judge entered an Order staying this
action until resolution of that criminal case. (ECF Nos. 222, 227).
Another fifteen months later in January 2020, Veach and Williamson each pled guilty to
one Count of Hobbs Act Extortion Conspiracy. (See Case No. 2:18-cr-89, ECF Nos. 80, 82). Each
has since been adjudged guilty and sentenced, and the criminal case against them concluded on
May 3, 2021. (Id. at ECF Nos. 94, 96, 132, 154). After being notified of the conclusion of the
criminal proceedings, the presiding District Judge lifted the stay in the instant case on May 17,
2021, and allowed all parties to reinstate any previously pending motions and related briefs
after being updated based on intervening events, including Veach and Williamson’s plea

3

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 4 of 15

agreements. (ECF No. 249). All Defendants then reasserted various previously pending motions
(ECF Nos. 256-57, 259-60), and both Plaintiffs and Local 395 filed new motions centered on
Veach and Williamson’s plea agreements. First, Local 395 filed the instant Motion for Leave to
File an Amended Answer. (ECF No. 251). Similar to the denials of knowledge in its previous
Answer, this new proposed Answer denies “independent corporate knowledge or information to
admit or deny” Plaintiffs’ allegations concerning the attack on D5 workers on January 7, 2016.
(See ECF No. 251-1, ¶¶ 18-31). But in addition to those initial denials, Local 395’s proposed
Answer adds the following statements concerning Veach and Williamson’s plea agreements:
Answering further Local 395 acknowledges that, despite prior inquiry
regarding the alleged events of January 7, 2016, it first was advised as to
the personal and individual admissions and the matters stated in the
“summary of events” in the plea declarations of Thomas Williamson, Sr.
(Williamson) and Jeffrey Veach (Veach) on January 23, 2020. Local 395
denies that any of the conduct acknowledged in that regard was within the
scope of any authority afforded them under the Union’s Constitution and
By Laws or otherwise, or that it was undertaken in any coherent belief that
it would further the business interests of or would rationally benefit the
Union. The conduct described was clearly unlawful and was never
authorized or ratified by Local 395.
(See ECF No. 251, ¶¶ 4, 18-31, 55, 59, 64, 71, 77, 80, 82, 84, 90, 92, 116, 120, 124, 128, 132, 137,
140-42, 144).
According to Plaintiffs, these additional assertions regarding Local 395’s lack of
knowledge and authorization of the conduct admitted in Veach and Williamson’s plea agreements
introduce a “new theory” that Local 395 “lacked corporate knowledge of the truth,” and “Plaintiffs
will be severely prejudiced by allowance of amendment as it will require time to respond to the
factual components of the new theory and recall various deponents.” (ECF No. 253, at 4-5). But
while Plaintiffs assert that Local 395’s Amended Answer would introduce new issues in the case,
Plaintiffs have also filed several motions raising issues based on Veach and Williamson’s plea
agreements, including: (1) a motion in limine seeking to admit the plea agreements and related
4

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 5 of 15

convictions and “conclusively establish” related facts (ECF Nos. 261-62); (2) a motion for
summary judgment as to Local 395’s liability, arguing that the plea agreements “establish” the
facts alleged in Plaintiffs’ Complaint and “overcome” any denials in Local 395’s Answer (ECF
Nos. 263, 267); and (3) a motion for sanctions against Local 395 and its counsel, arguing that the
plea agreements now demonstrate that Local 395’s prior Answers denying knowledge of the attack
on D5 workers were not well grounded in fact, and that Local 395 improperly failed to amend its
Answer to admit the attack based on the criminal proceedings against Veach and Williamson.
(ECF No. 272). Of these motions, only Local 395’s request to file an Amended Answer that
addresses Veach and Williamson’s plea agreements is pending before this Court. For the reasons
explained below, that motion is granted, though the Court stresses that this ruling expresses no
view regarding, and is without prejudice to any party’s arguments concerning, any other motions
or issues raised concerning Veach and Williamson’s plea agreements or their content.
ANALYSIS
As Plaintiffs acknowledge, “Rule 15 reflects a liberal attitude towards the amendment of
pleadings,” and “whether to allow the amendment of a pleading is within the discretion of the
court.” (ECF No. 253, at 5). Indeed, Rule 15(a) “instructs courts to ‘freely give leave when justice
so requires.’” Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 417 (7th Cir. 2019) (quoting
Fed. R. Civ. P. 15(a)). Given this liberal standard, the Seventh Circuit has warned that “district
courts should not deny leave absent a ‘good reason’ – such as futility, undue delay, prejudice, or
bad faith.” Id. (collecting decisions). The Court addresses each of these factors in turn.
I.

Plaintiffs’ Assertions of Undue Delay
The Court turns first to the issue of delay. As Plaintiffs note, Local 395’s request comes

nearly three years after Veach and Williamson were indicted and nearly four years after the close

5

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 6 of 15

of fact discovery. (P’s Response at 2, 6, 14, ECF No. 253). Plaintiffs further argue that Local 395
“could have pled the need to amend its Answer back in 2018 when the Grand Jury Indictment of
co-Defendants Veach and Williamson should have raised suspicion that the Union’s pleading was
problematic.” (Id. at 8). As Local 395 explains, however, its proposed amendment addresses the
facts admitted in Veach and Williamson’s plea agreements (not the general allegations in their
indictments), which were filed in January 2020 while the case was stayed. (D’s Reply at 4, 12,
ECF No. 258). As both sides acknowledge, Veach and Williamson asserted their Fifth Amendment
rights against self-incrimination prior to that time, and according to Local 395, denied any
involvement in the attack on D5 workers through their counsel. (Id. at 12; ECF No. 253, at 11).
Thus, while Plaintiffs argue that other witnesses had already testified that Veach and Williamson
“were perpetrators,” Local 395 could not have addressed the specific admissions in Veach and
Williamson’s plea agreements – admissions that Plaintiffs argue “will hold the Union responsible
for the acts of their agents” – before those agreements existed. (See ECF No. 251, at 7, 9).
As for the delay following execution of the plea agreements, Local 395 further explains
(and Plaintiffs do not dispute) that it “expressed its intention to file this Amended Answer during
status calls with the court on March 4, 2020, July 22, 2020 and April 9, 2021,” but the stay was
continued and remained in place until May 17, 2021. (D’s Motion at 3, n.1, ECF No. 251; ECF
No. 249).1 Local 395 then filed the instant motion to amend four days after the stay was lifted.
(ECF No. 251). Accordingly, although the Court acknowledges the passage of time from the filing
of the plea agreements in January 2020 to the instant motion to amend, it finds no undue delay in
failing to address developments in a related criminal case during the period this case was stayed
pending those criminal proceedings.

1

The Court also notes that the audio recordings of these hearings confirm Local 395’s stated intention to seek to
amend its Answer to address the admissions in Veach and Williamson’s plea agreements when the stay was lifted.

6

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 7 of 15

Moreover, as Local 395 further argues (ECF No. 258, at 12), even if it could be faulted for
some delay beforehand, Seventh Circuit authority repeatedly stresses that delay alone “is normally
an insufficient reason to deny a motion for leave to amend,” even if the case is approaching trial.
See Life Plans, Inc. v. Sec. Life of Denver Ins. Co., 800 F.3d 343, 358 (7th Cir. 2015) (quoting
Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004)); see also King v. Kramer,
763 F.3d 635, 640-45 (7th Cir. 2014) (reversing grant of motion in limine precluding amendment
of complaint and change of legal theory four weeks before trial: “While we can certainly appreciate
why the district court considered delay as a factor in deciding whether a change in legal theory
should be allowed, there is no reason why delay should have been the sole factor considered, or
the weightiest.”). Rather, “delay must be coupled with some other reason, such as prejudice to the
defendants.” King, 763 F.3d at 644 (quoting George v. Kraft Foods Global, Inc., 641 F.3d 786,
789-91 (7th Cir. 2011)); Life Plans, 800 F.3d at 358 (quoting Dubicz, 377 F.3d at 793). The Court
therefore turns to the remaining grounds asserted by Plaintiffs for denial of the instant motion to
amend: prejudice, futility, and bad faith and dilatory motive.
II.

Plaintiffs’ Assertions of Prejudice
Plaintiffs contend they will be unduly prejudiced because Local 395’s Amended Answer

“raises an additional defense of lack of corporate knowledge” of Veach and Williamson’s actions,
“under a theory it never authorized them to engage in their now admitted conduct.” (P’s Response
at 9, ECF No. 253; P’s Sur-Reply at 3, ECF No. 275). According to Plaintiffs, this “new theory”
improperly contests Local 395’s liability for the acts of its agents under the LMRA and common
law agency principles, and “will require expensive and time-consuming discovery in recalling
deponents to establish this point and factual substantiation of the defense.” (ECF No. 253, at 9-11,
14). Specifically, Plaintiffs assert a need for depositions of Veach and Williamson (who Plaintiffs

7

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 8 of 15

claim “can no longer hide behind the 5th Amendment”) “in order to ascertain what knowledge they
imparted to whom and when.” (Id. at 9-11). Plaintiffs also suggest such depositions would “require
special accommodations,” given Veach and Williamson’s incarceration. (Id. at 12).
Putting aside Plaintiffs’ additional argument that this defense is futile (addressed in Part III
below), the Court observes that Local 395’s denials of knowledge and agency in relation to Veach
and Williamson’s attack on D5 workers are not altogether new. Both its original Answer filed in
August 2016 and its Answer to Plaintiffs’ Amended Complaint filed in February 2017 asserted
insufficient knowledge or information about the attack on D5 workers; denied any involvement in
the attack against Plaintiff Kudingo (and in the later Answer, any involvement in the attacks against
Kudingo, Weil, and Harper); denied the attacks were sanctioned or directed by Local 395, or with
its authorization, advice, instigation, or encouragement; and further denied that its officers,
members, and representatives “acted as agents” as defined in the LMRA, 29 U.S.C. § 152(13).
(ECF No. 59, ¶¶ 4, 11, 20-29, 40, 78-79, 81-82, 85, 142-43; ECF No. 75, ¶¶ 4, 11, 21-31, 43, 8081, 83-84, 87, 137-38).2 Local 395’s knowledge and authorization of the attack was thus a proper
subject of discovery long before the instant motion.
What is new are Local 395’s denials that the specific conduct admitted in Veach and
Williamson’s plea agreements “was within the scope of any authority afforded them under the
Union’s Constitution and By Laws or otherwise, or that it was undertaken in any coherent belief
that it would further the business interests of or would rationally benefit the Union.” (E.g., ECF
No. 251, Exhibit 1, ¶¶ 4, 18-31). But again, those admissions also did not exist when Local 395’s
last Answer was filed, or when discovery closed in July 2017, so Local 395 could not have

2

29 U.S.C. § 152(13) states as follows: “In determining whether any person is acting as an ‘agent’ of another person
so as to make such other person responsible for his acts, the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be controlling.”

8

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 9 of 15

addressed them then. Thus, while Local 395’s proposed Amended Answer adds to the denials of
knowledge and agency asserted in its previous Answers, it does so only in response to information
received after those Answers were filed and discovery had closed. Plaintiffs’ assertion that Local
395 “has known of the factual bases” for its amended denials since “earlier in the discovery
process” (ECF No. 253, at 14) is therefore inaccurate insofar as the proposed amendments relate
to admissions in the individual Defendants’ plea agreements.
The Court also notes that the plea agreement admissions addressed in Local 395’s
proposed Amended Answer are already the subject of other motion practice in the case, and thus,
the impact of those admissions will be at issue in the case regardless of whether Local 395 is
allowed to amend its Answer. As discussed above, Plaintiffs have already moved for summary
judgment against Local 395, arguing that Veach and Williamson’s plea agreement admissions
“establish there is no issue of material fact as to who, what, where, or when the facts occurred as
alleged in the First Amended Complaint,” and “show the actions of President Veach and Business
Agent Williamson were ‘acting as a Local 395 business agent at the time of the incident.’” (ECF
No. 267, at 10 (quoting ECF No. 267-3, at 36). Plaintiffs’ Motion in Limine similarly argues
that Veach and Williamson’s plea agreements prove that Local 395 “engaged in the conduct
complained of.” (ECF No. 262, at 9-10). In response to the motion for summary judgment,
similar to its proposed Amended Answer, “Local 395 disputes that Veach and Williamson
were its agents acting within the scope of their employment or within the scope of their common
law agency authority when the attack of January 7, 2016, occurred.” (ECF No. 284, at 2).
Accordingly, the very dispute of Plaintiffs’ agency allegations raised in Local 395’s proposed
Amended Answer is raised in Plaintiffs’ Motion for Summary Judgment and Motion in Limine.
While the Court expresses no view regarding the merits of these motions, it also perceives no

9

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 10 of 15

prejudice to Plaintiffs by allowing Local 395 to amend its Answer to address an issue that Plaintiffs
themselves have raised.
Plaintiffs’ arguments of undue burden and delay due to additional discovery required by
Local 395’s proposed amendment are unpersuasive as well. As discussed above, Local 395’s prior
Answers had already disputed its involvement in the attack on D5 workers, its authorization of
those actions, and that its officers, members, and representatives “acted as agents” as defined in
the LMRA. (ECF Nos. 59, 75). Any additional discovery would therefore be limited to Local 395’s
denials of knowledge and authorization of the conduct admitted in Veach and Williamson’s plea
agreements. On the current record, the Court is unable to say whether these additional denials (so
closely related to those already addressed in discovery) require further inquiry, or even whether
such discovery would be available.3 But even assuming depositions of Veach and Williamson
would be required as Plaintiffs now argue (ECF No. 253, at 11-12), such limited discovery would
impose no undue burden on the parties, and no burden sufficient to deny leave to amend. See Life
Plans, Inc., 800 F.3d at 358 (holding that amendment should have been allowed despite potential
for “modest delay” of discovery, since “[t]he purpose of discovery is to refine the case and to
prepare it for trial based on a full understanding of the relevant facts”). Likewise, any costs
associated with such discovery (see P’s Sur-Reply at 10, ECF No. 275) must be addressed if and
when it is allowed, and only after the parties have met and conferred on that issue.
III.

Plaintiffs’ Assertions of Futility
Plaintiffs next argue that Local 395’s proposed amendment raises “an irrelevant defense”

of “lack of corporate knowledge,” and should therefore be denied as futile. (P’s Response at 9,

3

While Plaintiffs argue that depositions of Veach and Williamson are needed because they “can no longer hide behind
the 5th Amendment” (ECF No. 253, at 11), it remains to be seen whether such depositions are necessary in light of all
discovery previously taken, and whether Veach and Williamson would no longer assert their 5th Amendment rights.

10

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 11 of 15

ECF No. 253). According to Plaintiffs, federal labor law (specifically, 29 U.S.C. § 185(e)),
“mandates a union to assume all liabilities of its agents whether or not the acts are authorized or
ratified.” (ECF No. 253, at 9-10).4 Thus, Plaintiffs argue, Local 395’s amended assertions that the
conduct admitted in Veach and Williamson’s plea agreements “was never authorized or ratified
by Local 395” (e.g., ECF No. 251, Exhibit 1, ¶¶ 18-31) “reveal a non-existent defense that is futile
to allege.” (P’s Response at 9-10, ECF No. 253).
When assessing the futility of a proposed amendment, the Court “considers the legal
sufficiency of the defense, not the merits.” Brown v. Bureaus Inv. Grp. Portfolio No. 15 LLC, No.
4:19-cv-38, 2021 WL 1230079, at *2 (N.D. Ind. Apr. 1, 2021); Ellmann v. Amsted Rail Co., Inc.,
No. 2:17-CV-361, 2018 WL 1725494, at *2 (N.D. Ind. Apr. 9, 2018) (same). Such legal sufficiency
is therefore determined from the face of the proposed pleading. See O’Boyle v. Real Time
Resolutions, Inc., 910 F.3d 338, 347 (7th Cir. 2018) (“Unless it is certain from the face of the
complaint that any amendment would be futile or otherwise unwarranted, the district court should
grant leave to amend” (quoting Barry Aviation v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d
682, 687 (7th Cir. 2004)). “If the proposed amendment is not clearly futile, denying leave to amend
on this ground would be improper.” Ellman, 2018 WL 1725494, at *2 (citing 6 Wright and Miller,
Federal Practice & Procedure § 1487, 637-42 (2d ed. 1990) (if the proposed defense “is
insufficient on its face,” the court may deny leave to amend)). Given this standard, the Court rejects
Plaintiffs’ futility argument for two reasons.
First, while the LMRA states that a union’s lack of authorization or ratification “shall not
be controlling” on the issue of agency (see supra notes 2 and 4), Local 395’s proposed amendment

4

Like § 152(13) (see supra note 2), § 185(e) provides that, “in determining whether any person is acting as an ‘agent’
of another person so as to make such other person responsible for his acts, the question of whether the specific acts
performed were actually authorized or subsequently ratified shall not be controlling.”

11

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 12 of 15

asserts more than lack of authorization and ratification. It also denies that the conduct admitted in
Veach and Williamson’s plea agreements “was within the scope of any authority afforded them
under the Union’s Constitution and By Laws or otherwise, or that it was undertaken in any coherent
belief that it would further the business interests of or would rationally benefit the Union.” (E.g.,
ECF No. 251, Exhibit 1, ¶¶ 18-31). As Plaintiffs acknowledge, the issue of agency under the
LMRA and common law principles requires consideration of whether the agent’s actions were
“within the scope of his general authority.” (P’s Sur-Reply at 4-5, ECF No. 275). Local 395’s
amended denials that the conduct admitted by Veach and Williamson “was within the scope of any
authority afforded them under the Union’s Constitution and By Laws or otherwise, or that it was
undertaken in any coherent belief that it would further the business interests of or would rationally
benefit the Union,” thus address Plaintiffs’ own theory of agency. As such, while the Court
expresses no view on the merits of that issue, the defense appears legally sufficient on the face of
Local 395’s proposed Amended Answer.
Second, Local 395’s additional assertions that it lacked knowledge and did not authorize
or ratify the conduct admitted in Veach and Williamson’s plea agreements (e.g., ECF No. 251,
Exhibit 1, ¶¶ 18-31) are also responsive to Plaintiffs’ allegations. Wholly apart from Local 395’s
argument that knowledge and authorization of an agent’s independent or wrongful acts are required
for vicarious liability (ECF No. 258, at 6-9; ECF No. 278, at 4-5), Plaintiffs’ Complaints have
consistently alleged (and Local 395 has consistently denied) that the attack on D5 workers
“occurred with and at the authorization, sanction, advice, encouragement, and or instigation of
Defendants and their officers,” and that Local 395 “directed” and “sanctioned” the attack on
Plaintiff Kudingo. (ECF No. 59, ¶ 40, 81; ECF No. 75, ¶¶ 43, 83). Plaintiffs’ Complaint thus
renders Local 395’s denials of knowledge and authorization of the attack relevant by alleging that

12

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 13 of 15

Local 395 authorized, directed, and sanctioned it. Given these allegations, Local 395’s proposed
amended assertions that it never knew of, authorized, or ratified the specific conduct now admitted
in Veach and Williamson’s plea agreements are relevant as well.
IV.

Plaintiffs’ Assertions of Bad Faith and Dilatory Motive
Finally, Plaintiffs contend that Local 395’s proposed amendment should be denied based

on alleged bad faith and dilatory motive related to its past and current denials of knowledge of the
attack on D5 workers. Specifically, Plaintiffs argue that Local 395’s prior denials of knowledge
are “beguiled by the fact that its President, Veach, had direct personal knowledge of the event
when Local 395 answered the Complaint, the Amended Complaint, and at the time of the 30(b)(6)
deposition,” during which Local 395’s Business Manager, Ronald Ware, also claimed to lack such
knowledge. (P’s Sur-Reply at 6, ECF No. 275). According to Plaintiffs, Local 395’s reliance upon
Ware’s testimony to claim such lack of knowledge then and now is “willful blindness,” and Local
395’s corresponding claim that “it first gained knowledge of its officers and members’
involvement based solely upon the plea agreements entered January 22, 2020” must be rejected in
any event, because “Veach’s knowledge is imputed to Local 395, whether or not Veach conveyed
his knowledge to Local 395’s Business who testified he lacked knowledge.” (Id. at 6-7). Plaintiffs
thus argue that Local 395’s past and current denials of prior knowledge of the attack on D5 workers
should be rejected because they are factually unfounded and legally precluded. As explained
above, however, a court’s consideration of a proposed amendment does not focus on the merits,
and this Court therefore does not determine the truth or ultimate legal effect of the statements
contained therein. See Ellmann, 2018 WL 1725494, at *2.
Rather, the issue before this Court is whether the amendment currently proposed is sought
in bad faith. See Kreg, 919 F.3d at 417 (affirming decision allowing amendment that was not

13

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 14 of 15

“sought in bad faith”); see also Member Select Ins. Co. v. Cub Cadet, LLC, No. 2:16-CV-436,
2017 WL 563161, at *1 (N.D. Ind. Feb. 13, 2017) (leave to amend may be denied “if the
amendment is sought in bad faith”). Thus, while Plaintiffs’ contentions that Local 395’s prior
denials were made in bad faith may bear on other motions, they are not for this Court’s
consideration on the instant motion to amend. See Cemco Inv’rs, LLC v. United States, No. 04 C
8211, 2006 WL 8461539, at *2 n.3 (N.D. Ill. May 9, 2006) (alleged pre-litigation bad faith in
withholding information responsive to IRS summonses would be more properly addressed in a
dispositive motion, rather than motion to amend: “While bad faith by J&G could conceivably be
relevant to some sort of estoppel claim by the government, it is difficult to see how it is relevant
to the motion for leave to amend.”). What matters here is that Plaintiffs have alleged as a factual
matter that Local 395 directed and sanctioned the attack on Plaintiff Kudingo and that the attack
on D5 workers took place with Local 395’s authorization, advice, encouragement, and instigation.
(ECF No. 75, ¶¶ 43, 83). Having denied those allegations generally in the past (id.), Local 395
now seeks to deny them specifically with respect to the criminal conduct subsequently admitted in
Veach and Williamson’s plea agreements. (Id. at ¶¶ 4, 21-31). The truth of those denials (both past
and present), and their legal effect, are for the District Judge and/or jury to decide at the appropriate
time, not for this Court on a motion for leave to amend.5
Nor does the record before this Court support a finding that Local 395’s request to amend
is a mere “dilatory tactic,” as Plaintiffs further argue. (P’s Reply at 12-13, ECF No. 253). As
discussed throughout this Opinion, Local 395 has long denied knowledge of the attack on D5

5

In so ruling, this Court expresses no view on Plaintiffs’ pending Motion for Sanctions, which argues that Veach and
Williamson’s plea agreements now demonstrate that the denials in Local 395’s prior Answers were not “well grounded
in fact” or the product of “reasonable inquiry.” (ECF No. 272). Just as this Court does not assess the merits of Local
395’s current denials, it also does not address whether its past denials were supported by a reasonable factual basis for
purposes of Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Whether Local 395 possessed information undermining those
denials, or willfully disregarded such facts, is for the District Judge to determine at the appropriate time.

14

USDC IN/ND case 2:16-cv-00200-PPS-JPK document 291 filed 07/20/21 page 15 of 15

workers, and that it directed, sanctioned, or authorized that conduct. (ECF No. 59, ¶ 40, 81; ECF
No. 75, ¶¶ 43, 83). Thus, while Plaintiffs vigorously dispute those denials, Local 395’s current
request to make the same denials as to the conduct subsequently admitted by Veach and
Williamson represents no late sea change, and is no more dilatory than Plaintiffs’ affirmative use
of those admissions to demonstrate Local 395’s liability sufficient for summary judgment to be
granted against it. That Local 395 repeatedly stated between March 2020 and April 2021 an
intention to amend its answer to address Veach and Williamson’s plea agreements (see supra at 6
and note 1) similarly dispels any notion that the current proposed amendment was timed to gain
“a strategic advantage” or “throw the litigation into disarray.” See King, 763 F.3d at 647-48. In
short, while the Court acknowledges Plaintiffs’ factual and legal arguments against Local 395’s
denials of knowledge and responsibility for the attack on D5 workers, the liberal standards for
amendment require allowing Local 395 to make the same denials as to Veach and Williamson’s
subsequently admitted conduct, and for the truth and effect of those denials to be determined
another day.
CONCLUSION
For the foregoing reasons, the Court GRANTS Local 395 Ironworkers’ Motion for
Leave to File an Amended Answer to Plaintiffs’ Amended Complaint [DE 251]. Defendant
Local 395 Ironworkers shall file its Amended Answer to Plaintiffs’ First Amended Complaint
(ECF No. 251, at 6-46) as a stand-alone document on the electronic case docket upon receipt of
this Opinion and Order.
So ORDERED this 20th day of July, 2021.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT 

15