Zajork et al v. Hoteles Solaris De Mexico SA DE CV et al

Filing 25

ORDER signed by Judge Pamela Pepper on 9/6/2018 GRANTING 17 defendant's motion to amend/correct answer; defendant to file amended answer by end of day 9/21/2018. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LINDA ZAJORK, et al.,
Plaintiffs,
v.

Case No. 17-cv-217-pp

HOTELES SOLARIS DE MEXICO SA DE CV,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION
TO AMEND COMPLAINT (DKT. NO. 17)

The plaintiffs filed their two-count complaint in February 2017, alleging
negligence and a violation of Wisconsin’s safe place statute. Dkt. No. 1. One
defendant, Hoteles Solaris De Mexico SA DE CV, filed an answer on June 27,
2017, dkt. no. 13, and the court has dismissed the other defendant—
Transamerica Casualty Insurance Company—because the plaintiff failed to
timely serve it with the summons and complaint, dkt. no. 23. On January 5,
2018, Hoteles Solaris filed a motion for leave to amend or correct its answer,
dkt. no. 17, asking the court to allow it to add an affirmative defense regarding
the statute of limitations under law of the Mexican state of Quintana Roo, dkt.
no. 18. The plaintiffs opposed the motion, citing bad faith, dilatory tactics and
undue prejudice. Dkt. No. 19. Because this case is in the early stages, and
because Fed. R. Civ. P. 15(a)(2) requires the court to freely give leave to amend
when justice requires it, the court will grant the defendant’s motion.
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I.

BACKGROUND
The complaint alleges that while on vacation in Quintana Roo, Mexico,1

plaintiff Linda Zajork slipped and fell on water that covered the second floor of
the GR Caribe hotel. Dkt. No. 1. The plaintiff brought two claims against the
defendants; negligence and a violation of Wisconsin’s safe place statute. Id. At
the plaintiff’s request, Magistrate Judge William E. Duffin appointed a process
server to serve defendant Hoteles Solaris. Dkt. No. 4.
Hoteles Solaris filed its answer on June 27, 2017. Dkt. No. 13. The
answer raised nine affirmative defenses: (1) lack of personal jurisdiction; (2)
forum non conveniens; (3) inapplicability of Wisconsin’s Safe Place Statute; (4)
that the plaintiff’s carelessness and negligence may have caused her injuries;
(5) limited contractual or legal liability; (6) failure to mitigate damages; (7)
others’ acts/omissions may have caused plaintiff’s injuries and damages; (8)
qualified immunity; and (9) failure to exhaust. Id. at 5-6. The court waited (too
long) for Transamerica to answer or otherwise respond before realizing that it
had not been served; eventually, the court issued an order requiring the
plaintiff to show cause why Transamerica should not be dismissed for failure to
timely serve. Dkt. No. 22. When the court received no response, it dismissed
Transamerica as a defendant, dkt. no. 23, and set a Rule 16 status conference
for October 23, 2018, dkt. no. 24.

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The popular vacation city of Cancún is located in the state of Quintana Roo.
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A.

Defendant’s Motion for leave to Amend/ Correct Answer (Dkt. No.
17)

On January 5, 2018, Hoteles Solaris filed this motion to amend its
answer under Rule 15(a). Dkt. No. 17. The defendant explained that in
answering the complaint, it originally doubted whether the plaintiff could show
that this court had personal jurisdiction. Dkt. No. 18 at 2. At some point postanswer, the defendant recognized that its jurisdictional argument would not be
viable because of “the relationship between the Defendant and The Mark Travel
Corp.—the Wisconsin travel agency through which the Plaintiffs booked their
trip[.]” Id. The defendant indicated that with the jurisdictional argument no
longer viable, it performed a choice of law analysis and now “has reason to
believe the Quintana Roo statute of limitation would apply to Plaintiffs’ claims.”
Id. The motion seeks leave to add this affirmative defense to the nine the
defendant already has raised.
The plaintiffs object to the amendment, saying that the court can (and
should) deny an amendment to a pleading where there is undue delay, bad
faith, dilatory motive or undue prejudice to the opposing party. Dkt. No. 19 at 6
(citing Ferguson v. Roberts, 11 F.3d 696, 701 (7th Cir. 1993)). They argue that
the defendant’s assertion that it belatedly recognized personal jurisdiction was
made in “bad faith,” and assert that the defendant has engaged in “dilatory
tactics” because it allegedly had not (as of the date of the motion) replied to the
plaintiffs’ interrogatories or requests for production of documents. Id. The
plaintiffs conclude that because the defendant had not provided additional
discovery responses, granting leave to amend “would cause undue prejudice to
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Plaintiffs, with regard to any defense they attempt to mount to Defendant’s
inevitable motion concerning choice of law.” Id. at 10.
II.

ANALYSIS
Rule 15(a) governs when a party seeks to amend its pleadings before

trial. The time has passed for the defendant to amend its complaint as a matter
of course under Rule 15(a)(1), so the court looks to Rule 15(a)(2). That provision
reads, “. . . a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Although this is a “liberal
standard,” Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. and Nw. Ind.,
786 F.3d 510, 520 (7th Cir. 2015), “leave to amend is not automatically
granted, and may be properly denied at the district court’s discretion for
reasons including undue delay, the movant’s bad faith, and undue prejudice to
the opposing party.” Crest Hill Land Dev., LLC v. City of Joliet, 396 F.3d 801,
804 (7th Cir. 2005) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)).
The court concedes that this case in “old” in the sense that the plaintiffs
filed their complaint in February 2017. The fact that the case has been pending
for a year and a half, however, is not due to any fault of defendant Hoteles
Solaris. The plaintiffs did not serve one of the defendants they sued—
Transamerica—and to this day have not explained why. The court should have
noticed that fact far sooner than it did, but that is part of the reason for the
aging of the case. When the court did issue an order to show cause, the
plaintiffs did not respond. Dkt. No. 22.
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In any event, Hoteles Solaris filed this motion for leave to amend a little
over six months after it had filed its answer, at a time when there had been no
activity in the case. Relatively little activity has taken place in the interim. The
court has not held its Rule 16 conference or issued a scheduling order
regarding discovery or dispositive motion practice. The plaintiffs do not cite any
cases in which a court denied a motion to amend an answer this early in a
case. The cases the plaintiffs cite have denied motions to amend much later in
the case, such as on the eve of trial, see Gagan v. Am. Cablevision, 77 F.3d
951, 968 (7th Cir. 1996), after the court has denied a motion for summary
judgment, Castro v. Chi. Hous. Auth., 360 F.3d 721 (7th Cir. 2004), or one
month after discovery had closed, Crest Hill, 396 F.3d at 804. The procedural
posture of this case stands in stark contrast.
The stage of the case also belies the plaintiffs’ claims of undue prejudice.
The plaintiffs assert that the defendant has not answered certain
interrogatories and has not responded to requests for production of documents.
Given that there is no scheduling order in place—no deadline for completing
discovery—the authority setting a deadline for the defendant to respond to
requests for interrogatories is the one in Rule 33(b)(2) (thirty days), and the
authority setting a deadline for the defendant to respond to requests for
production is the one in Rule 34(b)(2)(A) (also thirty days). The plaintiffs say
they served these discovery demands on September 8, 2017 and had not (as of
the date of their objection) received responses. If that is the case, there is a
remedy. The plaintiffs may file a motion to compel under Fed. R. Civ. P. 37
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(complying first with the requirements of this court’s Local Rule 37). They may,
through such a motion, request sanctions, if they think sanctions are
appropriate. Asking this court to deny leave to amend for failure to timely
respond to discovery demands, however, amounts to a back-door motion for
discovery sanctions, without complying with the requirements of Rule 37
(national and local).
Given that the court has yet to set a discovery deadline, the plaintiffs will
have sufficient time to obtain the information that they seek to defend against
a potential choice of law/conflict of law/statute of limitations motion.
Finally, the defendant indicated that it had missed the statute of
limitations defense in its original answer because it originally thought the court
lacked personal jurisdiction. The plaintiffs respond that, based on the
defendant’s admissions, the defendant couldn’t have thought this, because it
knew that the plaintiffs had booked the trip through Mark Travel. Thus, the
plaintiffs argue, the defendant seeks leave to amend in bad faith. The court
disagrees. The defendant does not indicate that it didn’t know that the
plaintiffs had used a Wisconsin travel agency to book the trip. Rather, they say
that after they filed their answer, they “confirmed” that fact. It appears that
post answer, the defendant collected information about the contract between
Mark Travel and the defendant, and conducted its choice-of-law analysis. After
doing all of that, the defendant sought leave to amend. The fact that the
defendant did its due diligence before seeking leave to amend does not
constitute bad faith.
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III.

CONCLUSION
The court GRANTS the defendant’s motion for leave to amend/correct its

answer, dkt. no. 17.
The court ORDERS that the defendant shall file its amended answer no
later than the end of the day on Friday, September 21, 2018.
Dated in Milwaukee, Wisconsin this 6th day of September, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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