Szany v. Garcia et al

Filing 51

OPINION AND ORDER: The Court GRANTS in part and DENIES in part the Motion by Plaintiff for Leave to File an Amended Complaint 48 . The Court ORDERS Plaintiff to file her Third Amended Complaint with changes as outlined in the Order, along with proposed summons on or before 3/5/2018. Signed by Magistrate Judge Paul R Cherry on 2/27/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE SZANY,
Plaintiff,
v.
CITY OF HAMMOND,
Defendant.

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CAUSE NO.: 2:17-CV-74-JTM-PRC

OPINION AND ORDER
This matter is before the Court on a Motion by Plaintiff for Leave to File an Amended
Complaint [DE 48], filed by Plaintiff Denise Szany on February 10, 2018. No response was filed.
In the proposed pleading, Plaintiff seeks to add state law claims against Defendant Garcia.
On January 30, 2018, the Court dismissed the federal claim against Defendant Garcia. Plaintiff
repleads the dismissed claim—Count I—in her proposed pleading.1 However, the dismissed claims
need not be repleaded to preserve the issue for appeal and, for purposes of economy, should not be
repleaded. Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 782 (7th Cir. 2013); see also Bastial v.
Petren Resources Corp., 892 F.2d 680, 683 (7th Cir. 1990) (“It is not waiver—it is prudence and
economy—for parties not to reassert a position that the trial judge has rejected.”). Therefore, Count
I of the proposed amended pleading should be removed.
Plaintiff argues that her claims that remain the same from the previous version of the
Complaint can proceed to discovery while her newly asserted claims undergo briefing on an
anticipated motion to dismiss. The Court declines to separate the claims into different discovery
schedules at this time. At the very least, a motion to bifurcate the discovery process must be filed

1

Plaintiff labels her proposed pleading “Second Amended Complaint for Monetary Relief,” but the pleading,
if amendment is allowed, will be her third amended version of the Complaint.

separately from the instant Motion to Amend. N.D. Ind. L.R. 7-1(a). The Court makes no finding
on the likelihood of success of such a motion. Further, to the extent that Plaintiff implies that
Defendants need not file responsive pleadings to the claims that remain the same, that position is
incorrect. Defendants must file complete answers.
In the caption of the proposed pleading, the title is written as “Szany, Plaintiff, v. Garcia,
City of Hammond, Defendants.” Federal Rule of Civil Procedure 10(a) mandates that “[t]he title of
the complaint must name all the parties.” There has already been confusion in this litigation whether
Plaintiff is “Christine Szany” or “Denise Szany.” Further, Defendant Garcia’s name has been written
in various documents in this litigation as both “Jamie” and “Jaime.” To alleviate this confusion as
to the parties, Plaintiff is directed to provide full names for herself and Defendant Garcia.2
Lastly, because Defendant Garcia was dismissed from this case and Plaintiff seeks to bring
new claims against him, Plaintiff must serve Defendant Garcia pursuant to Federal Rule of Civil
Procedure 4.
Based on the foregoing, noting the lack of objection, and finding that justice so requires
pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court GRANTS in part and DENIES in
part the Motion by Plaintiff for Leave to File an Amended Complaint [DE 48]. The Court ORDERS
Plaintiff to file her Third Amended Complaint, with Count I removed, with full, correct names
provided for the parties in the title, and with the heading changed to Third Amended Complaint for
Monetary Relief, along with proposed summons on or before March 5, 2018.

2

This is not to say that the parties should be named in the heading of the Complaint, which currently reads
“Second Amended Complaint for Monetary Relief.” That heading should be changed to “Third Amended Complaint for
Monetary Relief” but should not be otherwise changed.

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So ORDERED this 27th day of February, 2018.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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