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Albert v. Bank of America, N.A.

United States District Court, Northern District of Illinois, Eastern Division

March 24, 2015

KENNETH ALBERT, Plaintiff,
v.
BANK OF AMERICA, N.A., et al., Defendants.

MEMORANDUM OPINION AND ORDER [1]

SIDNEY I. SCHENKIER, United States Magistrate Judge.

Plaintiff Kenneth Albert seeks leave, pursuant to Federal Rule of Civil Procedure 15(a)(1), to file a Third Amended Complaint against the five remaining defendants in this lawsuit: RE/MAX CityView ("RE/MAX"), Prestige Management Solutions, LLC ("Prestige"), The Brookwood Condominium Association ("Brookwood"), A & D Property Services, Inc. ("A & D"), and Patmar Janitorial Service, Inc. ("Patmar") (doc. # 183). Four of these defendants (collectively, "Defendants")[2] oppose the motion, arguing that Plaintiffs proposed amended complaint is untimely and would cause them undue prejudice at this point in the litigation (docs. ## 184-86, 190). For the following reasons, we grant Plaintiffs motion for leave to file a Third Amended Complaint in the form attached to his motion.

I.

We begin with a brief factual and procedural history of the case. Plaintiff originally filed suit in the Circuit Court of Cook County, Illinois on March 12, 2012, alleging that he was severely injured on July 21, 2011 when a mirror placed atop a dumpster located within the confines of his condominium complex slipped off and fell on his foot (Pl.'s Mot. for Leave to Am. Compl. ("Pl.'s Mot.") at 1 (doc. # 183)). Plaintiff alleged that all defendants were liable in negligence for his injury-which he maintains was a direct consequence of the improper handling of debris discarded from a foreclosed condominium unit located on the floor above Plaintiffs own unit (Id.).

On November 5, 2012, while still in state court, Plaintiff amended his original complaint to add as a defendant the Federal Home Loan Mortgage Corporation ("FHLMC"). The FHLMC then moved to transfer the case to federal court, and the case was transferred to the Northern District of Illinois on December 7, 2012 (Pl.'s Mot. at 1; doc. #1). On April 25, 2013, Plaintiff amended his complaint for a second time to add three more defendants: Patmar, A & D, and Ananias Granger (doc. # 26).

Since the filing of the Second Amended Complaint, three defendants have been dismissed from the suit: Bank of America, N.A. (doc. # 60); Ananias Granger (doc. # 169), and the FHLMC (doc. # 175). The remaining defendants are the four who currently oppose the motion to amend, along with RE/MAX.

On July 9, 2014, the Court held a status hearing at which Plaintiffs attorney orally requested leave to file a Third Amended Complaint. The Court suggested that Plaintiff hold off on this filing until such time as the parties had successfully deposed Roy Duggin (a recalcitrant witness who had failed to appear for deposition pursuant to subpoena) or had otherwise dealt with his unwillingness to be deposed. This way, Plaintiff could belter avoid the potential need to seek leave to further amend the complaint (Pl.'s Reply, Exh. A, p. 11 (doc. # 191)). Plaintiffs attorney acquiesced to this suggestion (Id. at 12). Three of the four defendants who now oppose the motion for leave to amend (Brookwood, Prestige, and A & D) were present at that hearing; however, none of them objected to deferring Plaintiffs request to amend the complaint.

At a subsequent status hearing on October 21, 2014, in line with the Court's standing orders, the Court instructed each defendant who wished to file a summary judgment motion to first send a letter to Plaintiffs counsel outlining the bases for its position that it is entitled to summary judgment (Pl.'s Reply, Exh. B, p. 9). The Court set a due date of November 18, 2014 for these letters to be served (Id. at 10), [3] At that same hearing, Plaintiffs attorney asked for "seven days leave to file our amended complaint just to change some technical terms that we've been using" (Id. at 5). The Court noted that it would not grant leave to amend without seeing the proposed amendment, and so directed Plaintiff to file a motion if he wished to seek leave to amend (Id. at 6). The Court also sought assurance from Plaintiffs counsel that any amendment is "not going to substantively change ... the claims so it probably wouldn't affect the defendant[s'] position regarding summary judgment" (Id.). To this. Plaintiffs counsel replied: "No, it would not" (Id.).

Finally, at a status hearing on December 17, 2014, Plaintiff orally moved for leave to file the instant motion (doc. # 182). The Court granted the motion and set a briefing schedule, and the motion now has been fully briefed.

II.

Federal Rule of Civil Procedure 15(a) governs amendments to pleadings and motions made before trial. Fed.R.Civ.P. 15(a). Rule 15(a)(2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should " freely give leave when justice so requires." Although Rule 15(a) "reflects a liberal attitude towards the amendment of pleadings, courts in their sound discretion may deny a proposed amendment if the moving party has unduly delayed in filing the motion, if the opposing party would suffer undue prejudice, or if the pleading is futile." Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (quoting Campania Mgmt. Co. v. Rooks, Pitts &. Poust, 290 F.3d 843, 848-49 (7th Cir. 2002)). Another basis for denying leave to amend is if there is a dilatory motive on the part of the movant. See Perrian v. O'Grady, 958 F.2d 192, 194 (7th Cir. 1992).

In his motion, Plaintiff asserts that he seeks to amend his complaint only for purposes of "conform[ing] [it] to the proof and to "reflect testimony that was given during oral fact discovery" (Pl.'s Mot. at 2, 6). To the extent that Plaintiffs assertion seeks to invoke Rule 15(b), Plaintiff mistakenly relies on a rule that governs proposed amendments to the pleadings during and after trial "to conform them to the evidence and to raise an unpleaded issue." Fed. R, Civ. P. 15(b)(2). Of course, we are at a pretrial stage. Thus, we consider Plaintiffs arguments under Rule 15(a)(2).[4]

Plaintiff maintains that his cause of action-negligence-remains unchanged and that his proposed amendment only adds new evidence-uncovered during discovery-that pertains to that cause of action. Accordingly, Plaintiff says that Defendants would not be prejudiced by the amendment (Pl.'s Mot. at 6). Plaintiff states as further proof of the lack of prejudice that no trial date has been set and that no new discovery would be necessitated by the proposed amendment if it is granted (Id. at 5-6). Plaintiff also points out, as evidence of good faith and timeliness, that he first requested leave to amend at the status on July 9, 2014 (Id. at 4-5).

Defendants oppose the motion: they contend that the proposed Third Amended Complaint is untimely, and that allowing it to be filed would result in undue prejudice caused by the assertion of new allegations after the completion of fact discovery. Specifically, Brookwood asserts that while the current complaint sets forth "a negligence theory involving construction negligence or active negligence, " the proposed complaint seeks to add "a negligence theory involving premises liability and passive negligence" (Brookwood's Mot. in Opp. at 4 (doc. # 184)). This, Brookwood contends, "is tantamount to advancing a new claim and creates significant prejudice to the defendants" (Id. at 5). Prestige argues that Plaintiffs proposed complaint raises for the first time allegations that Prestige failed to enforce Brookwood Condominium's Declarations and By-laws (Prestige's Mot. in Opp. at 2 (doc. # 185)). A & D likewise alleges that the proposed Third Amended Complaint seeks to add new theories, including the negligent delegation of authority, the negligent failure to train and supervise its subcontractor, and the negligent failure to investigate the qualifications of its subcontractor (A & D's Mot. in Opp. at 2 (doc. # 190)). Finally, Patmar maintains that Plaintiffs Third Amended Complaint seeks to add the new allegation that Patmar had a duty to rotate ...


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