The opinion of the court was delivered by: Magistrate Judge Morton Denlow
MEMORANDUM OPINION AND ORDER
Before the Court is a motion by plaintiff Raymond Kasak ("Plaintiff" or "Kasak") for leave to file his second amended complaint. Plaintiff seeks to include additional background allegations to his political retaliation claim (Count I) and also asks permission to add two new counts-one for a due process violation against Defendant Village of Bedford Park ("Bedford Park") (Count II) and a count against Defendant Leo J. DuBois ("Chief DuBois") and Bedford Park (collectively, "Defendants") for violation of an Illinois state statute limiting the disciplinary authority of a municipality (Count III). During briefing on the motion, Plaintiff decided to withdraw proposed Count III. For the reasons set forth below, the Court grants Plaintiff's motion for leave to file a second amended complaint consisting of Counts I and II and strikes proposed Count III.
Kasak has been a police officer in the Village of Bedford Park for 23 years. For 18 of those years he served as the supervisor of the Juvenile Division of the Bedford Park Police Department. Chief DuBois brought a series of charges against Kasak in January 2006. Later, in March 2006, Kasak was double demoted from Lieutenant to Patrol Officer following an administrative hearing by the Village Board. This double demotion serves as the basis for Kasak's suit.
Plaintiff's original complaint filed in September 2006 asserted three retaliation counts against Defendants for 1) union-related speech and activity; 2) politically related speech and association; and 3) exercise of freedom of speech. Plaintiff filed his First Amended Complaint at Law on June 8, 2007.
Defendants responded to the First Amended Complaint with motions to dismiss Counts I and III and answers to Count II. On September 18, 2007, the Court granted motions to dismiss Counts I and III leaving only Count II for retaliation against political speech and association remaining. Kasak v. Vill. of Bedford Park, 514 F. Supp. 2d 1071 (N.D. Ill. 2007).
The Court set a discovery cut-off date of December 31, 2007. The parties substantially complied with the exception of Village Board Trustee Robert Regep's ("Regep") deposition, which was taken in early January 2008. During that deposition, Regep explained that the Village Board had decided to double-demote Plaintiff well in advance of the administrative hearing before the Board. The Board directed Chief DuBois to draw up the charges against Plaintiff which were then presented to the Board for hearing.
The parties appeared before the Court for status on January 10, 2008 at which time Defendants informed the Court of their intent to file motions for summary judgment as to Count II of the First Amended Complaint for political retaliation. At the same time, Plaintiff advised the Court that he intended to file a motion for leave to file a second amended complaint citing new information that was discovered in the Regep deposition. The Court ordered the parties to file their respective motions on or before February 21, 2008. On February 18, 2008, Plaintiff filed his motion for leave to file a second amended complaint. The following day Defendants filed motions for summary judgment on the political retaliation count.
Plaintiff's Second Amended Complaint contains additional factual allegations in support of Count I for political retaliation (originally Count II in the First Amended Complaint) as well as counts for two new causes of action-Count II against Bedford Park only for violation of due process rights, and Count III against Bedford Park and Chief DuBois for violation of Illinois Statute 65 ILCS 5/10-2.1-17. The additional allegations in Count I contain only background information. As a result, Defendants do not dispute that it does not impact the briefing for their summary judgment motion.
After Defendants' briefing on the issue and oral argument, Defendants do not object to Count I and Plaintiff has voluntarily withdrawn Count III. Therefore, the Court only addresses the proposed new cause of action in Count II.
III. LEGAL STANDARD ON MOTION FOR LEAVE TO AMEND COMPLAINT
After a responsive pleading is served a party may amend only by leave of court or by written consent of the adverse party. Fed. R. Civ. P. 15(a). Leave to amend is freely given when justice so requires. Id. The rule, however, does not require that leave be granted in every case. Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir. 2002). "In particular, a district court may deny a plaintiff leave to amend his complaint if 'there is undue delay, bad faith,'" dilatory motive, or if the amendment is futile, or will result in undue prejudice to the opposing party. Id. at 612.
An amendment is futile if it reasserts a claim previously determined, merely restates the facts from the original complaint using different language, fails to state a valid theory of liability, or could not withstand a motion to dismiss. Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992). Moreover, undue delay alone may not be sufficient to deny leave to amend a complaint. Instead, "the degree of prejudice to the opposing party is a significant factor in determining ...