Wisconsin Masons Health Care Fund et al v. Sid's Sealants, LLC et al

Filing 27

OPINION & ORDER granting 20 Motion for Leave to File Amended Complaint; denying as moot 25 Motion for Leave to Conduct Discovery. Signed by District Judge James D. Peterson on 11/13/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WISCONSIN MASONS HEALTH CARE FUND,
WISCONSIN MASONS APPRENTICESHIP &
TRAINING FUND, GARY BURNS (in his capacity as
Trustee),BRICKLAYERS & TROWEL TRADES
INTERNATIONAL PENSION FUND,
INTERNATIONAL MASONRY INSTITUTE,
BRICKLAYERS & ALLIED CRAFTWORKERS
DISTRICT COUNCIL OF WISCONSIN,
WISCONSIN LABORERS HEALTH FUND,
BUILDING & PUBLIC WORKS LABORERS
VACATION FUND, WISCONSIN LABORERS
APPRENTICESHIP & TRAINING FUND, and JOHN
J. SCHMITT(in his capacity as Trustee), WISCONSIN
LABORERS-EMPLOYERS COOPERATION AND
EDUCATION TRUST FUND, WISCONSIN
LABORERS DISTRICT COUNCIL, BUILDING
TRADES UNITED PENSION TRUST FUND and
SCOTT J. REDMAN (in his capacity as Trustee),
INDUSTRY ADVANCEMENT
PROGRAM/CONTRACT ADMINISTRATION,

OPINION & ORDER
17-cv-28-jdp

Plaintiffs,
v.
SID’S SEALANTS, LLC and SIDNEY N. ARTHUR,
Defendants.
Plaintiffs in this case are representatives of defendant Sid’s Sealants, LLC’s employees,
alleging that Sid’s and defendant Sidney Arthur failed to make required contributions to the
employees’ trust funds, in violation of the Employee Retirement Income Security Act, the
Labor Management Relations Act, and state law. Now plaintiffs are seeking leave to expand
the scope of their complaint to include claims that defendants failed to make required
contributions related to: (1) a second weekly paycheck the employees received when they
worked more than 40 hours; and (2) hours worked for defendants by employees of a company

called North Shore Restoration. Dkt. 20. Plaintiffs are also seeking leave to conduct discovery
on the new claims. Dkt. 25. For the reasons explained below, the court will grant the first
motion and deny the second motion as moot.

ANALYSIS
The parties debate whether Rule 15 or Rule 16 of the Federal Rules of Civil Procedure
governs plaintiffs’ motion for leave to amend their complaint. The answer to the debate is
provided in the preliminary pretrial conference order: “Amendments to the pleadings may be
filed and served without leave of court through the date set forth above [May 19, 2017]. After
that, Federal Rule of Civil Procedure 15 applies, and the later a party seeks leave of the court
to amend, the less likely it is that justice will require the amendment.” Dkt. 12, at 1. See also
Sanchelima Int'l, Inc. v. Walker Stainless Equip. Co., No. 16-cv-644, 2017 WL 3499350, at *1
(W.D. Wis. Apr. 17, 2017) (Rule 15 governs motion for leave to amend complaint filed after
date in preliminary pretrial conference order). Under Rule 15(a)(2), courts must give leave
“freely” to parties to amend their pleadings, “when justice so requires,” but parties are not
entitled to such leave when “there is undue delay, bad faith, dilatory motive, repeated failure
to cure deficiencies, unfair prejudice to the defendants, or where the amendment would be
futile.” Hukic v. Aurora Loan Services, 588 F.3d 420, 432 (7th Cir. 2009).
Defendants do not contend that plaintiffs’ proposed amendment is futile or that it was
brought in bad faith. Their primary contention is that there was undue delay. On that point,
the court agrees; plaintiffs have not made a persuasive showing that they were unable to bring
their new claims much earlier. Plaintiffs filed their motion on September 12, 2017, eight
months after they filed their lawsuit, and more than six months after the preliminary pretrial

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conference. Plaintiffs say that they did not have the information they needed to bring the new
claims until August 2017, but the new information comes primarily from the declaration of
Eric Holmes, a Sid’s employee who is represented by the same counsel as the plaintiffs in this
case and is suing the same defendants in another case for failing to pay him overtime. Holmes
v. Sid’s Sealants, LLC, 16-cv-821-wmc (W.D. Wis.). Counsel for plaintiffs do not even try to
explain why they were unable to speak with Holmes about these issues sooner.
But undue delay on its own is generally not a sufficient ground for denying a motion
for leave to amend; there must be unfair prejudice as well. Dubicz v. Commonwealth Edison Co.,
377 F.3d 787, 792 (7th Cir. 2004). This is where defendants’ objection falls flat. Defendants
allege only in the most general terms that allowing plaintiffs to amend their complaint would
“creat[e] additional and substantial litigation costs.” Dkt. 22, at 8. Defendants neither provide
details nor explain why their costs would be greater now than if plaintiffs had amended their
complaint earlier, which are the only type of costs that matter. This is because the question is
not simply whether allowing plaintiffs to expand their claims will prejudice defendants; that is
likely to occur any time a plaintiff amends her complaint to add more claims. The question is
whether defendants will be unfairly prejudiced, or, in other words, whether defendants will bear
additional costs and burdens or somehow be disadvantaged in a way they would not have been
had the plaintiffs amended their complaint earlier. Because defendants do not identify any way
they have been harmed by plaintiffs’ delay, this counsels in favor of granting plaintiffs’ motion.
The court’s one concern is that the deadline for filing dispositive motions is December
15, 2017, little more than a month away. But defendants do not dispute plaintiffs’
representation in their motion that defendants should already have all the relevant documents
related to these claims, so they should not need to do discovery in order to move for summary

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judgment on the claims. And because the new claims are closely related to the old ones, the
new claims should not take the case in any significant new directions. If that turns out to be
incorrect or defendants otherwise believe that they need more time to prepare in light of the
new claims, defendants may seek to adjust the deadline (sooner rather than later), explaining
in as much detail as they can what they need and why they need it.
Plaintiffs acknowledge that they will need discovery, which is why they filed their
motion to conduct discovery on the claims even before the court could rule on their motion for
leave to file an amended complaint. It is likely that plaintiffs will not have sufficient time to
obtain discovery and seek summary judgment on the new claims. That is the price that
plaintiffs pay for waiting as long as they did to seek an amendment, but it is not a reason for
denying the amendment altogether.
Accordingly, the court will grant plaintiffs’ motion for leave to amend. That decision
moots plaintiffs’ request to conduct discovery because the parties do not need the court’s
permission to conduct discovery on a pending claim.

ORDER
IT IS ORDERED that plaintiffs’ motions for leave to amend their complaint, Dkt. 20,
is GRANTED and their motion for leave to conduct discovery on their new claims, Dkt. 25, is
DENIED as moot.
Entered November 13, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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