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GROTH v. ORKIN EXTERMINATING CO.

December 15, 1995

EVELYN GROTH, PLAINTIFF,
v.
ORKIN EXTERMINATING CO., INC., A FOREIGN CORPORATION LICENSED TO DO BUSINESS IN ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

  OPINION

Plaintiff's Motion for Leave to File Second Amended Complaint.

Motion denied.

I. BACKGROUND

This is a dispute between Orkin Exterminating Company, Inc. (Orkin) and a homeowner (Groth). Orkin supplied Groth with termite protection service, beginning in 1989. In 1994, Groth filed this lawsuit after Orkin refused to repair termite damage to her house. Groth alleged that Orkin had breached 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 January 1996.

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 ...

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