Booker v. Johnsonville Sausage LLC
ORDER signed by Judge J.P. Stadtmueller on 6/26/2017 DENYING 27 Plaintiff's Motion for Leave to Amend His Complaint and for Joinder. (cc: all counsel, via mail to Delvaris Booker) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 16-CV-1047-JPS
JOHNSONVILLE SAUSAGE LLC,
Plaintiff, proceeding pro se, filed this action alleging employment
discrimination by his former employer, Defendant Johnsonville Sausage
LLC (“Johnsonville”). (Docket #1). On May 30, 2017, Plaintiff filed a
motion for leave to amend his complaint and to join his wife, Monic
Booker, who also worked for a time at Johnsonville, as a plaintiff. (Docket
#27). Johnsonville opposes both requests. (Docket #29).
Federal Rule of Civil Procedure 15(a) provides that leave to amend
a complaint “shall be freely given when justice so requires.” Fed. R. Civ. P.
15(a). Courts favor granting leave to amend, but they act within their
discretion to deny such leave when there is a substantial reason to do so.
Select Creations, Inc. v. Paliafito Am., Inc., 830 F. Supp. 1213, 1216 (E.D. Wis.
1993). This includes undue delay, bad faith, 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, or futility of the amendment. Foman v.
Davis, 371 U.S. 178, 182 (1962); Campania Mgmt. Co. v. Rooks, Pitts & Poust,
290 F.3d 843, 849 (7th Cir. 2002).
The Court must deny Plaintiff’s motion. First, Plaintiff has waited
until the eve of the dispositive motion deadline, which is June 30, 2017,
(Docket #23), to raise new claims of discrimination and retaliation both as
to himself and his wife. These claims, if permitted, would alter the scope
of the litigation and require substantial additional discovery. This would,
in turn, force Johnsonville to incur added expense and cause considerable
disruption in the Court’s longstanding trial schedule, which has been in
place since early December 2016. See (Docket #15). Plaintiff offers no viable
argument to justify such delay. Campania, 290 F.3d at 849 (“A trial court
may deny leave to amend when the amendment would cause the
opposing party to bear additional discovery costs litigating a new
Nor does Plaintiff explain why these claims were not raised earlier,
although they were known to him before he filed this action. Plaintiff’s
original complaint concerned only matters arising as of the date he filed
his Equal Opportunity Employment Commission (“EEOC”) charge of
discrimination on February 12, 2016. Yet now, Plaintiff wants to complain
about his suspension in March 2016 and his separation from Johnsonville
in April 2016, both of which he alleges occurred in retaliation for his
charge of discrimination. (Docket #27 at 1). He also wants to join his wife’s
claims which allegedly arose around the same time. (Docket #30 at 6–9).
Even assuming that these new claims are sufficiently related to Plaintiff’s
existing claims to skirt Title VII’s exhaustion requirement, see Graham v.
AT&T Mobility, LLC, 247 F. App’x 26, 29 (7th Cir. 2007), Plaintiff does not
justify his delay in raising these claims despite knowing their factual bases
long before suit was filed. See Lac Courte Oreilles Band of Lake Superior
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Chippewa Indians of Wis. v. United States, 367 F.3d 650, 668 (7th Cir. 2004).
Indeed, Plaintiff already tried to raise these claims three months ago, and
the Court instructed him to submit an amended complaint in compliance
with the applicable rules. See (Docket #19). Waiting until this late hour to
comply with the Court’s directive is inexcusable.
Furthermore, Plaintiff’s reference to his pro se status cannot forgive
his delay in amending his complaint or his failure to include these
allegations in the original complaint. See (Docket #30 at 2–3). While the
Court is required to liberally construe Plaintiff’s pro se filings, it cannot
create factual allegations from whole cloth. See Williams v. Kotkosky, Case
No. 16-CV-442-JPS, 2017 WL 913613, at *1 (E.D. Wis. Mar. 7, 2017)
(“Though the Court is required to liberally construe a pro se party’s filings,
it cannot act as his lawyer, and it cannot delve through the record to find
favorable evidence and argument for him.”). The generous standard of
review provided to Plaintiff is meant to forgive the kinds of technical
pleading errors non-lawyers might make, Erickson v. Pardus, 551 U.S. 89,
94 (2007); it cannot be employed to manufacture the allegations and legal
theories necessary for a pro se litigant’s recovery. As such, Plaintiff’s pro se
status does not validate his dilatory request to amend his complaint.
Finally, as to Plaintiff’s wife in particular, there is no reason why
they should bring their claims together in this action under the rules of
joinder. See Fed. R. Civ. P. 20(a)(1) (plaintiffs may join together in one suit
only if they have any joint claim arising out of the same transaction or
occurrence). Plaintiff baldly contends that they each suffered the same
instances of discrimination and retaliation while working at Johnsonville,
(Docket #27 at 2), but in his reply, Plaintiff reveals that his wife’s
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complaints arise from actions taken by other co-workers and supervisors,
on different dates, from those implicated in Plaintiff’s claims. See (Docket
#30 at 6–7). In fact, Johnsonville has submitted unrebutted evidence that
Plaintiff’s wife is still pursuing her administrative remedies as to the
instances of workplace discrimination she allegedly experienced, (Docket
#29-1), and her charges of discrimination do not map onto Plaintiff’s
allegations. Considering Plaintiff’s and his wife’s claims and attendant
circumstances holistically, it is clear that they do not bear a sufficient
logical relationship to each other which would suggest that they must be
heard together. See State Farm Fire & Cas. Co. v. Electrolux Home Prods., Inc.,
No. 11-cv-8946, 2012 WL 1287698, at *6 (N.D. Ill. Apr. 16, 2012) (citing Bd.
of Regents of Univ. of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448,
469 (7th Cir. 2011)).
Moreover, Plaintiff is mistaken that his wife’s claims can or should
be brought alongside his simply because they are married or because she
“was grossly affected” by what happened. (Docket #30 at 3–4). At most,
this argument establishes that she may be a witness to some of the
incidents underlying his claims, but it does not follow that her claims
belong in this suit. As such, the rules of joinder (and exhaustion of
administrative remedies) indicate that she should not be joined as a
plaintiff. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); Rush v.
McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992).
IT IS ORDERED that Plaintiff’s motion for leave to amend his
complaint (Docket #27) be and the same is hereby DENIED.
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Dated at Milwaukee, Wisconsin, this 26th day of June, 2017.
BY THE COURT:
U.S. District Judge
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