its contract with her to repair any termite damage that occurred
after they entered the contract.
Groth originally filed suit in Illinois state court on February
16, 1994. On April 29, 1994, Orkin removed the case to this Court
and moved to dismiss the Complaint. After receiving an extension
of time in which to respond to that motion, Groth amended her
Complaint. Orkin answered on July 19, 1994.
U.S. Magistrate Judge Charles H. Evans entered the first
scheduling order on November 9, 1994. That scheduling order
provided, inter alia, that no motions to join parties or to amend
the pleadings were to be filed. The scheduling order also set the
case for trial in September 1995.
On February 24, 1995, the parties agreed to extend the
scheduling order. In their motion, the parties asked for
additional time in which to identify expert witnesses. Groth's
lawyer, Attorney Patricia L. Hayes, wanted an extension because
Attorney Daniel J. Schumacher became associated with Groth's
counsel on February 6, 1995, was assigned to the case two days
later, and had insufficient time to comply with the Court's March
5, 1995 deadline for identifying expert witnesses. Magistrate
Judge Evans amended the scheduling order to allow additional time
in which to identify experts and moved the case to the October
1995 trailing trial calendar.
On June 28, 1995, Groth filed a motion to extend the scheduling
order. Groth's attorney stated that an extension was needed
because her associate, Mr. Schumacher, who was working on the
case, left the firm and because she had extensive medical
problems that prevented her from working on the case. Magistrate
Judge Evans allowed the motion and amended the scheduling order.
The second amended scheduling order provided that discovery was
to end by October 10, 1995, dispositive motions were to be filed
no later than October 24, 1995, and the case was set for trial in
On October 12, 1995, Groth again filed a motion to extend the
scheduling order. In her motion, Ms. Hayes, Groth's attorney,
recited her medical problems and listed numerous other
proceedings and depositions in which she was involved. Magistrate
Judge Evans denied the motion.
On October 24, 1995, Orkin moved for summary judgment. On
November 8, 1995, Groth filed a motion for leave to amend the
Complaint. On November 9, 1995, Groth moved for an extension of
time in which to file her response to Orkin's Motion for Summary
Judgment. Groth's attorney stated that she is "a sole
practitioner and has been unable to research and respond to
Defendant's Motion for summary judgment . . ." because she had
been involved in numerous other matters during the preceding
weeks. Magistrate Judge Evans allowed the motion.
On November 8, 1995, one day before filing the motion for
additional time to respond to Orkin's Motion for Summary
Judgment, Groth filed a Motion for Leave to File Second Amended
Complaint (Motion for Leave to Amend). Groth seeks to amend her
Complaint to include a claim of statutory consumer fraud,
pursuant to the Illinois Consumer Fraud and Deceptive Business
Practices Act, Ill.Ann.Stat. ch. 815, paras. 505/1-505/12
(Smith-Hurd 1993 & Supp. 1995). Groth claims that newly
discovered evidence supports such a claim. Groth states:
During the course of discovery, Plaintiff has learned
of the following facts that support a cause of action
for statutory consumer fraud:
a. Defendant's agent and employee, Mike Truitt,
knowingly misrepresented to Plaintiff that her home
would be covered by Orkin's "Total Repair Guarantee;"
b. Plaintiff was induced by these representations
to purchase Defendant's services;
c. The written guarantees in the agreement
materially conflict with the verbal guarantees given
by Defendant and its agent/employee, Mike Truitt.
d. Plaintiff detrimentally relied on these
representations and suffered extensive damages;
e. Defendant has failed to fulfill its duties under
the "Total Repair Guarantee"
and is claiming Plaintiff only purchased a "limite
On November 20, 1995, Orkin vigorously responded to Groth's
Motion for Leave to Amend. Finally, on November 27, 1995, Groth
filed her response to Orkin's Motion for Summary Judgment.