Painters District Council No. 58 et al v. Harms-Troesser Construction Co. Inc. et al

Filing 30

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' motion for leave to file an amended complaint replacing the individual Defendant is GRANTED. (Doc. No. 26 .) IT IS FURTHER ORDERED that Plaintiffs shall file their amended complaintre placing Defendant Richard Harms with new Defendants Leon Troesser and Carl Harms, and shall obtain service on the newly-named Defendants within 28 days of the date of this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on November 16, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAINTERS DISTRICT COUNCIL NO. 58,
et al.,
Plaintiffs,
vs.
HARMS-TROESSER CONSTRUCTION
CO., and RICHARD HARMS, individually,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:16CV00514 AGF

MEMORANDUM AND ORDER
Plaintiff brought this action under the Employee Retirement Income Security Act,
29 U.S.C. § 1001, et seq. (“ERISA”), for amounts due by Defendant Harms-Troesser
Construction Co. to certain employee benefit funds. Richard Harms was named as a
Defendant based on his purported signing of a personal guarantee agreeing to be personally
liable for any ERISA delinquent payments due to Plaintiffs, including assessed damages
and costs. Now before the Court is Plaintiffs’motion for leave to file an amended
complaint replacing Richard Harms with two different individuals, Leon Troesser and Carl
Harms. Plaintiffs explain that during informal discovery, Plaintiffs’ attorney learned that
the signator of the guarantee was not the current “owner” Richard Harms but rather the two
prior “owners,” Leon Troesser and Carl Harms.
Defendants oppose the motion, asserting that Leon Troesser and Carl Harms signed
the guarantee in their corporate capacities and thus cannot be personally liable under
Missouri law. Attached to their response is a copy of the guarantee.

Under Federal Rule of Civil Procedure 15(a), a court “should freely give leave [to
amend pleadings] when justice so requires.” Notwithstanding this liberal standard, a
court may deny leave to amend where the proposed amendment would be futile. Reuter v.
Jax Ltd., 711 F.3d 918, 922 (8th Cir. 2013). Defendants are correct that under Missouri
law, an individual signing a guarantee in his corporate capacity cannot be held personally
liable on the guarantee. However, from examination of the guarantee in this case, it
appears far more likely that Leon Troesser and Carl Harms signed it in their personal
capacities. Even though after their signatures the words “v. pres” and Pres.” appear,
respectively, the text of the guarantee suggests that they were signing the guarantee in their
personal capacities as owners of the company. As such, the Court cannot conclude that it
would be futile to permit the amendment requested.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for leave to file an amended
complaint replacing the individual Defendant is GRANTED. (Doc. No. 26.)
IT IS FURTHER ORDERED that Plaintiffs shall file their amended complaint
replacing Defendant Richard Harms with new Defendants Leon Troesser and Carl Harms,
and shall obtain service on the newly-named Defendants within 28 days of the date of this
Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 16th day of November, 2016
2