Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COWART v. DAVID J. AXELROD & ASSOCIATES

April 26, 2004.

PAMELA G. COWART, individually and on behalf of all others similarly situated, Plaintiff,
v.
DAVID J. AXELROD & ASSOCIATES, f/k/a AXELROD & GREENBLATT, DAVID J. AXELROD, individually, WAL-MART STORES, INC., and SAM'S CLUB WEST, INC., d/b/a SAM'S CLUB, Defendants



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Pamela G. Cowart, seeks to leave to file an amended complaint.*fn1 For the reasons set forth below, the Court finds that Plaintiffs motion should be granted.

  I. Background

  In August of 2003, Plaintiff filed a complaint against Defendants David J. Axelrod & Associates, f/k/a Axelrod & Greenblatt, and David J. Axelrod (collectively "Axelrod") alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. ("ICFA"). Included in the complaint was one count against Defendants Wal-Mart Stores, Inc., and Sam's Club West, Inc., d/b/a/ Sam's Club (collectively "Wal-Mart") alleging violations of the ICFA. Plaintiffs complaint stemmed from Axelrod's efforts to collect a debt not owed by her and Wal-Mart's actions in allegedly improperly turning over Plaintiff's wages to the judgment creditor before the issuance of a court order in contravention of 735 ILCS 5/12-808 of the Illinois Wage Deduction Act.

  Wal-Mart responded to the complaint in October 2003 by filing a motion to dismiss. After the motion was fully briefed, Judge Manning granted Wal-Mart's motion to dismiss with prejudice on February 20, 2004. Wal-Mart ceased work on the discovery requests that it had been preparing to serve on Plaintiff. Plaintiff did not seek further discovery from Wal-Mart after the motion to dismiss was granted but did send it copies of deposition notices pertaining to the other defendants.

  Approximately six weeks after Wal-Mart's motion to dismiss was granted, Plaintiff filed a motion for leave to file an amended complaint against Wal-Mart, alleging common law wrongful garnishment and conversion. The motion was filed eighteen business days before the close of fact discovery scheduled for April 30, 2004. The deadline for filing dispositive and Daubert motions is November 12, 2004.

  II. Discussion

  Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend a complaint after a responsive pleading has been filed only with leave of court. Rule 15(a) further instructs that "leave shall be freely given when justice so requires," and therefore leave to amend a complaint is generally liberally granted, Murphy v. Vill. of Hoffman Estates, 959 F. Supp. 901, 904 (N.D. III. 1997). Nevertheless, the court may deny leave to amend where there exists "undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when the amendment would be fufile." Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). The discretion to grant or deny a motion to amend remains with the trial court. Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991). Wal-Mart objects to the motion to amend on the grounds that Plaintiff had no excuse for its delay in filing the motion, Wal-Mart would be unfairly prejudiced by the amendment, and that the proposed amendment would be fufile.

  A. Undue Delay and Prejudice

  Wal-Mart argues that Plaintiff does not sufficiently explain its failure to add the two new claims at an earlier date. The facts on which Plaintiff bases the two new claims were known to Plaintiff when she filed the original complaint and the new claims are not newly discovered. It also points out that Plaintiff could have filed a motion to amend the complaint when the motion to dismiss was filed instead of participating in an extensive briefing schedule. Wal-Mart further argues that it has been unfairly prejudiced by the proposed amendment because fact discovery is closing at the end of April.

  The longer the delay in seeking leave to amend, the greater the presumption against granting it. Tamari v. Bache & Co. (Lebanon) S.A.L., 838 F.2d 904, 909 (7th Cir. 1988). While the court will consider delay as one factor when deciding whether to grant a motion to amend, it must also find that the non-movant has suffered undue prejudice. King v. Cooke, 26 F.3d 720, 723-24 (7th Cir. 1994); Stone Container Corp. v. Arkwright Mut. Ins. Co., No. 93 C 6626, 1996 WL 238904, at *3-4 (N.D. Ill. May 2, 1996) (holding that even if the plaintiff did not provide a sufficient explanation for the delay, an amendment may still be allowed unless it burdens or causes undue prejudice to the defendant).

  In this case, we find that Plaintiff has not unduly delayed in seeking to amend the complaint. Plaintiff's counsel indicated in oral argument that he needed time to draft the motion and amended complaint after the motion to dismiss was granted, indicating that the motion to amend would not have been filed had the motion to dismiss not been granted. While the drafting of the very brief motion and the amended complaint should not have taken an inordinately lengthy amount of time, we find that six weeks in this context does not constitute undue delay. We also note that this case had been pending only for approximately eight months when Plaintiff filed the motion to amend. And, while Plaintiff's explanation of the delay in failing to include the two new counts in the original complaint remains somewhat lacking, the Court may still, at its discretion, allow the amendment unless it would cause undue prejudice to Wal-Mart.

  Wal-Mart's claims of prejudice center around the imminent close of discovery. It suggests that Plaintiff should have filed the motion to amend more quickly after the motion to dismiss was decided. However, given that the motion to dismiss was granted at the end of February, Plaintiff would have been hard pressed to file the motion to amend at an early enough date to allow time for a ruling before Wal-Mart would need to serve its discovery requests to be answered before the close of discovery. In other words, even if Plaintiff filed the motion to amend the day after the motion to dismiss was decided, Wal-Mart would still be constrained by the discovery deadline. Wal-Mart also suggests that the motion to amend should have been filed when the motion to dismiss was filed. This argument assumes that Plaintiff would have been willing to concede defeat in its opposition of the motion to dismiss, a position that she was understandably unwilling to assume. Nevertheless, Plaintiff could have included the claims in the original complaint, or filed the motion to amend at any time while the motion to dismiss was pending. The question remains, how did Plaintiffs failure to amend at an earlier time prejudice Wal-Mart. Wal-Mart returns to its argument that it is prejudiced by the close of discovery, but it does not quantify the amount of additional discovery that needs to be completed in relation to the new claims. Wal-Mart has not identified evidence or witnesses lost during the passage of time.

  Almost every amendment to a complaint will result in some prejudice to the defendant. Bell v. Am. Med. Ass'n, 00 C 0573, 2000 WL 1367946, at *2 (N.D. Ill. Sept 15, 2000). The question is whether the prejudice is undue. Id. In this case, the prejudice to Wal-Mart resulting from the amendment does not meet this threshold. Plaintiff does not object to an extension of the discovery deadline. This case is fairly straightforward, and Wal-Mart should not need substantially more discovery time to defend against the new claims especially because it recognizes that the facts are similar to those set forth in the dismissed ICFA count. As discussed by the Court in oral argument, an extension of discovery will alleviate nearly all of the prejudice that Wal-Mart ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.