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Shaffer & Sons Construction, Inc. v. Alter Trading Corp.

June 25, 2010

SHAFFER & SONS CONSTRUCTION, INC., PLAINTIFF,
v.
ALTER TRADING CORPORATION, DEFENDANT.



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

OPINION

Pending before the Court is the Plaintiff's supplement to motion for leave to file first amended complaint instanter. For the reasons that follow, the motion is Allowed in Part and Denied in Part.

I.

On October 30, 2009, the Court allowed in part and denied in part the Plaintiff's motion for leave to file its first amended complaint instanter. The Plaintiff again seeks leave to amend its Complaint. Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be freely given, though it does not follow that it should always be given. See Hukic v. Aurora Loan Services, 588 F.3d 420, 432 (7th Cir. 2008). "[D]istrict courts have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants or where the amendment would be futile." Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008).

II.

In support of its new motion, the Plaintiff claims that Counts I, II and III of the proposed Complaint reflect the testimony of Beverly Howell, the Plaintiff's bookkeeper, who was in charge of accumulating the information needed to invoice the company's customers. The charges reflected in Counts II and III are based, in part, on information supplied by Terry Gallaher, an independent contractor responsible for supplying labor for the Plaintiff's jobs described in the complaint.

The Plaintiff further alleges that the notebooks where Mr. Gallaher recorded the hours he and his employees worked on the various jobs are attached as exhibits to the final pretrial order. These notebooks were not located by Mr. Gallaher and provided to the parties' counsel until a few days before his deposition, which was taken on March 16, 2010.

The Plaintiff further asserts that William Shaffer, who suffers from dyslexia and has trouble reading, had no role in compiling the information needed to bill the customers of his company or in preparing invoices. That was Ms. Howell's responsibility. The Court notes that, in an Order entered on May 30, 2009, summary judgment was entered in favor of the Defendant on Counts V and VI of the Complaint when the Court concluded, based on Mr. Shaffer's deposition testimony, that those counts were duplicative of Counts II and III. On October 30, 2009, the Court denied the Plaintiff leave to combine Counts II and V of the Complaint in order to add a new Count I.

The Plaintiff contends that a review of Mr. Shaffer's deposition testimony regarding scrap processing conducted at the Celotex facility reveals that extensive work was done at different times in different parts of different buildings. Water pumps were used at certain locations and not at others. The total hours worked at various locations were drastically different. The materials salvaged, from engines which were resold as they were found to two story vats which had to be cut for relocation, were found in different parts of the facility, etc. The Plaintiff claims that this work was separate from the clearing of the fire lane and it has not been paid for this processing.*fn1

The Plaintiff further asserts that much of the need to reconstruct hours of labor and hours that equipment was utilized is the result of the Defendant's failure to weigh processed scrap so that Plaintiff could be paid on the agreed per ton basis. Thus, the proposed complaint, which increases the charges for certain processing and decreases the charges for others, is the most accurate description of the evidence.

III.

The Defendant objects to the bulk of the Plaintiff's motion. The Defendant provides several reasons for its resistance: (1) the Plaintiff only recently (in February 2010) provided the Defendant with invoices that supported four new claims; (2) the Plaintiff's request is not timely; (3) the Defendant will suffer prejudice if the Plaintiff is permitted to add new claims and allegations at this late stage; and (4) the addition of three of the new claims would be futile because they fall outside of the applicable statute of limitations.

(A)

The four new claims in proposed Count I include the following: Labor & equipment utilized to process scrap in the interior of Building #6 of the Celotex Plant from 8/7/2004 through 9/9/2004 $53,793.00 Labor & equipment utilized to process scrap in Building #6 of the Celotex facility from 12/6/2004 through 12/29/04 $54,713.50 Labor & equipment utilized to process scrap from the basement of Building #6 of the Celotex facility from 4/25/2005 through 8/12/2005 $259,370.50 Labor & equipment utilized ...


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