The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
Before the court are two motions related to Plaintiff Brett Lee Curtis' attempt to seek punitive damages in his wrongful death suit against the prisoner transport company that had custody of his father on the day he died. For the reasons stated herein, "Plaintiff's Motion to Amend Complaint and Scheduling Order to Add a Punitive Damage Claim under Tennessee Law" (Dkt. No. 143 ("Pl.'s Mot. to Amend"), is denied. The court reserves ruling, however, as to whether Curtis can nonetheless pursue punitive damages under Fed. R. Civ. P. 54(c). Additionally, "Plaintiff's Motion for Determination of Choice of Law Relating to the Issue of Punitive Damages" (Dkt. No. 141 ("Pl.'s Choice of Law Mot."), is granted, and the court will apply Tennessee law to the issue of punitive damages.
On June 23, 2009, Joseph Curtis ("Joseph") was transported from the federal prison in Leavenworth, Kansas, through Illinois, to the federal prison in Terre Haute, Indiana (Dkt. No. 1, Ex. A. ("Pl.'s Compl." ¶ 3.).) According to an autopsy, Joseph died that day as a result of heatstroke. (Id. ¶ 14.) During the move, he was in the custody and control of TransCor America, LLC ("TransCor"), a prisoner transport company. (Id. ¶¶ 2--4.) According to Plaintiff's complaint, the outside temperature along the transport route exceeded 95 degrees, and the air conditioning in the transport van was not functioning. (Id. ¶¶ 6--7.)
Joseph's son, Brett Lee Curtis ("Curtis"), acting as Joseph's heir at law and the administrator of his estate, filed suit against TransCor on May 26, 2010, in the Circuit Court of Cook County. TransCor then removed the case to this court. (Dkt. No. 1.) This court previously denied a motion by TransCor to transfer this case to the Southern District of Indiana, finding that the question of venue was "inextricably intertwined with the central factual issues of Plaintiff's claims." (Dkt. No. 32.) In their briefing on the motion to transfer venue, the parties identified a likely conflict over whether Indiana or Illinois law governs this dispute. Curtis argued that Illinois law should apply (Dkt. No. 17-1, at 2), while TransCor argued that Indiana law should apply. (Dkt. No. 9.) Curtis did not suggest at that time that Tennessee law would apply to his claims or any damages issue.
The scheduling order in this case provided that Curtis had until June 15, 2011, to amend his complaint. (Dkt. No. 41.) Discovery in this case closed on Jan. 15, 2012. (Id.) The final pretrial order, motions in limine, and dispositive motions on the choice-of-law issue are due to be filed on April 20, with trial set for May 7. (Id.)
Curtis now seeks to amend his complaint to add a punitive damage claim, which he argues is governed by Tennessee law because TransCor is headquartered in Tennessee and because much of the allegedly negligent and reckless conduct occurred there. (Pl.'s Mot. to Amend 2.) Tennessee law allows for the imposition of punitive damages in wrongful death cases if there is clear and convincing evidence that the defendant acted intentionally, fraudulently, maliciously, or recklessly. Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 531 (Tenn. 2008). A person acts recklessly, under Tennessee law, when "the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances." Id. (internal citations omitted.) Curtis acknowledges that neither Indiana nor Illinois law allow for the imposition of punitive damages in wrongful death cases. See Mattyasovszky v. W. Town Bus Co., 313 N.E.2d 496, 502 (Ill. App. Ct. 1974); Ind. Code 34-23-1-2(c)(2)(B).
Curtis asks this court to amend its scheduling order to allow him to include a prayer for punitive damages in his complaint. Simultaneously, he requests a determination that Tennessee law applies to that prayer for relief. Curtis requests that the court make this choice of law determination first, arguing that until the court does so, his motion to amend is not ripe. (Pl.'s Mot. to Amend 9--10.) He cites no authority for this proposition, however. TransCor contends that the choice-of-law issue becomes relevant only if the court grants Curtis' motion to amend. (Dkt. No. 153 ("Def.'s Obj. to Pl.'s Mot. to Amend") ¶ 1.) The court will turn first to the motion to amend.
A review of Curtis' original complaint, compared to his proposed amended complaint, shows that the factual allegations are identical, but he is seeking to add an allegation specifically labeling these acts as "reckless." (Compare Dkt. No. 1, Ex. A., with Dkt. No. 143, Ex. 1). In his proposed First Amended Complaint, Curtis adds a paragraph alleging that: "Transcor's [sic] conduct set forth herein was reckless when it became aware of, but consciously disregarded a substantial and unjustified risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would have exercised under all the circumstances." (Dkt. No. 143, Ex. 1 ("Prop. First Am. Compl." ¶ 16.).) Plaintiff also added a prayer for punitive damages to his request for relief in both Count I, alleging wrongful death, and Count II, a survival action. (Id. at p. 4.)
Generally, a motion for leave to amend a complaint is decided under Fed. R. Civ. P. 15(a)(2), which provides the court should "freely give leave when justice so requires." Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). However, when a party seeks leave to amend his complaint after the date set in the court's scheduling order, as Curtis does, the court must first consider whether good cause exists for modifying that order under Fed. R. Civ. P. 16(b)(4) before considering whether to grant leave to amend. Alioto, 651 F.3d at 719--20. The primary consideration in determining whether good cause exists to modify a scheduling order is the diligence of the party seeking amendment. Id. at 720.
Both sides treat Curtis' motion to amend as one governed by this two-step process. Neither party, however, addresses the impact of Fed. R. Civ. P. 54(c), which provides that, except in the case of a default judgment, "every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." See Back Doctors Ltd. v. Metropolitan Prop. and Cas. Ins. Co., 637 F.3d 827, 831 (7th Cir. 2011) (citing Rule 54(c) and holding that a plaintiff is not required to amend his complaint to recover damages otherwise recoverable under the substantive law).
The court will first consider whether good cause exists to modify the scheduling order in this case. In arguing that he acted with the requisite diligence, Curtis notes that when this suit was filed in Illinois, it did not include a prayer for punitive damages because Illinois law does not allow the pleading of punitive damages in an initial complaint. (Pl.'s Mot. to Amend 7.) Curtis acknowledges that once the lawsuit was removed to this court that provision no longer applied, but contends that at the time the suit was removed, the evidence indicated that TransCor's negligent acts occurred in Indiana and Illinois, neither of which allows punitive damages. (Id. at 8.)
In particular, Curtis contends that TransCor did not consent to the deposition of the coroner until July 7, 2011, or make its employees available for deposition until June 30, 2011. Curtis contends that he did not obtain evidence that it was TransCor management's decision to continue the trip even though it knew the air conditioning was not functioning in the van until June 30, 2011, fifteen days after the deadline to amend the pleadings passed. It was on that date that Curtis also obtained evidence that it was TransCor management's decision to take an unconscious Joseph to the prison in Terre Haute rather than to a nearby hospital, Curtis contends. (Id. at 8--9.)
TransCor argues that Curtis has not shown diligence because the motion to amend came eights months after the deadline to do so and one month after the discovery and dispositive motion deadlines. (Def.'s. Obj. to Mot. to Amend 2.) TransCor additionally argues that Curtis had the information needed to amend his complaint well prior to filing his motion to amend on February 14, 2012. The court agrees.
In particular, TransCor produced a number of significant documents on April 15, 2011, prior to the deadline for amending the pleadings, including: (1) the company's policies in regard to medical emergencies;*fn1 (2) a letter in which TransCor's CEO, J. Stephen Kennedy, praised the conduct of the employees involved in handling the incident; (3) records showing that company management in Tennessee was advised at 7:42 a.m. on the date of the incident that the air conditioning was not working in the transporter, but directed its agents to continue the trip;*fn2 (4) and a safety report filed in Tennessee by a TransCor employee after Joseph's death in which the employee indicated that TransCor vehicles were not properly inspected ...