The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Defendants Bank of Springfield (Bank), Michael McGlasson, James Kelley, Willis Chrans and Steven Bentley's (collectively the Moving Defendants) Motion to Strike Plaintiffs' Supplemental Responses to Defendants' Interrogatories and Bar Additional Claims of Fraud (d/e 124 & 125) (Motion). Plaintiffs have asked for oral argument on the Motion. The parties have fully briefed the matter, so oral argument is unnecessary. As explained below, the request to bar claims is premature because the Plaintiffs have not sought to amend the Second Amended Complaint (d/e 101) to add additional claims; should the Plaintiffs seek permission to amend the pleadings, the Court will address the matter at that time. Beyond this, the Supplemental Responses are timely and the information set forth therein has already been developed elsewhere in discovery. The Court sees no reason to strike them.
The Plaintiffs filed this action on September 2, 2005. They alleged securities fraud and related claims against the Defendants in connection with the Plaintiffs' investment in certain airlines in Argentina. For a detailed discussions of the Plaintiffs' allegations, see Opinion entered January 20, 2006 (d/e 68), at 2-15. In January and February 2006, Defendants Chrans, Bentley, and the Bank propounded contention interrogatories requesting the Plaintiffs to set forth each misrepresentation and omission on which they based their claims. The Plaintiffs responded by setting forth the misrepresentations and omissions alleged in the First Amended Complaint (d/e 39). Motion, Exhibit A (Original Responses).
The Plaintiffs filed the Second Amended Complaint on August 18, 2006. The specific allegations of misrepresentations and omissions were substantially the same as those set forth in the First Amended Complaint and the Original Responses. The Plaintiffs were deposed during discovery. Each affirmed the accuracy of the Original Responses.
On August 31, 2007, the date that discovery closed, the Plaintiffs served the Supplemental Responses to the contention interrogatories. Motion, Exhibit C (Supplemental Responses). The Supplemental Responses identified many additional instances of alleged misrepresentations and omissions that were not included in either the Second Amended Complaint or the Original Responses. The Moving Defendants filed this Motion in response.
The Moving Defendants ask the Court to bar the additional claims of fraud set forth in the Supplemental Responses and to strike the Supplemental Responses as beyond the scope of the pleadings. The Court will address each request separately.
Request to Bar Additional Claims
The request to bar additional claims is premature because the Plaintiffs have not moved to amend the Second Amended Complaint. The Plaintiffs claim that the Defendants defrauded them. The elements of fraud must be pleaded with particularity. Fed. R. Civ. P. 9(b). The Second Amended Complaint sets forth detailed allegations of numerous specific misrepresentations and omissions of material fact. Those are the claims at issue in the case. The Plaintiffs have not sought to amend the Second Amended Complaint, so the question of additional claims currently is not before the Court.
The Moving Defendants are concerned that the Plaintiffs are attempting to use the additional contentions in the Supplemental Responses to expand this case beyond the scope of the pleadings at the close of discovery. The Plaintiffs do not indicate that this is their purpose, and the Court will not speculate. It is true that the parties may, by express or implied consent, expand a case to include matters outside of the pleadings. Fed. R. Civ. P. 15(b); see Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996). The Moving Defendants demonstrate by this Motion that they do not so consent. Thus, at this point, the misrepresentations and omissions at issue are those set forth with particularity in the Second Amended Complaint. The Plaintiffs have not asked the Court for leave to amend the Second Amended Complaint to add the additional alleged misrepresentations and omissions set forth in the Supplemental Responses, so the matter is not properly before the Court, and the request to bar such non-existent claims is premature.
Request to Strike Supplemental Responses
The Moving Defendants ask the Court to strike the Supplemental Responses because they were propounded at the close of discovery and because they set forth claims of misrepresentations and omissions not alleged in the Second Amended Complaint. The Plaintiffs respond that the Supplemental Responses are based on information disclosed elsewhere during discovery and that no basis exists to strike them.
The Defendants are correct that the Supplemental Responses go beyond the misrepresentations and omissions alleged in the Second Amended Complaint. As discussed above, the Plaintiffs' fraud claims are limited to the misrepresentations and omissions alleged in the Second Amended Complaint. The Supplemental Responses have not changed that. The issue raised by this Motion, however, is ...