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.
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.
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
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 ...