United States District Court, N.D. Illinois, Eastern Division
SCOTT MAGEE, individually and on behalf of all others similarly situated, Plaintiff,
MCDONALD'S CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
B. Gottschall Judge
to his First Amended Complaint (“FAC”), Scott
Magee (“Magee”), is legally blind. ECF No. 4
¶ 9. Magee has sued McDonald's Corp.
(“McDonald's”), a well-known fast food chain.
Many McDonald's restaurants in the United States lock
their doors late at night and continue to sell food to
customers who use the drive-through. See Id.
¶¶ 25-32. Magee alleges that this practice
unlawfully discriminates against blind individuals. See
Id. ¶¶ 33-40 (describing Magee's alleged
failed attempts to use drive-throughs without a car). Magee
brings claims under Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12181
et seq., on behalf of a putative nationwide class
and under the Unruh Act, Cal. Civ. Code, § 51, et
seq., on behalf of a proposed California subclass.
February 15, 2017, the court granted in part and denied in
part McDonald's motion to dismiss the FAC for failure to
state a claim upon which relief can be granted. ECF No. 33.
Discovery began by March 1, 2017, and the parties reported
that written discovery was ongoing on May 3, 2017.
month-and-a-half later, on June 13, 2017, Magee filed a
motion for leave to file a second amended complaint.
See Proposed 2d Am. Compl. (“Proposed
SAC”), ECF No. 50-2.
requests leave to add McDonald's USA, LLC
(“McDonald's USA”), as a defendant and alter
certain allegations regarding the relationship between the
named defendants and McDonald's restaurants operated
under a franchise agreement. Compare Id.
¶¶ 13-21, with FAC ¶¶ 13-14. In the FAC,
Magee alleges that “[s]ome of Defendant's
restaurants are operated by the Defendant, others are
operated by franchisees.” ECF No. 4 ¶ 13. The FAC
adds that McDonald's leases or owns the restaurant
building. Id. ¶ 14. Magee would introduce a
concept he calls the “McDonald's System, ”
which “is codified and enforced by manuals and
franchise agreements (‘McDonald's System
Documents') that are authored, owned, promulgated and
enforced by McDonald's, ” in the SAC. See
Proposed SAC ¶ 15, see also Id. ¶ 13-21.
Because, Magee alleges, “[a]s it exists today, the
McDonald's System does not include any policy, procedure,
protocols, or infrastructure for assisting, aiding, or
serving visually-impaired would-be customers of
McDonald's-branded restaurants when the interiors [but
not the drive-through windows] of those restaurants are
closed to the public, ” Magee would seek to hold
McDonald's and McDonald's USA liable for alleged ADA
violations at restaurants run by franchisees. Id.
¶ 21. After considering the parties' arguments,
including the court-authorized surreply, ECF No. 70, and the
applicable law, the court grants the motion.
deadline for amending pleadings has been set, the court
analyzes the instant motion under Federal Rule of Civil
Procedure 15(a)(2). E.g., United States v.
Arnaout, No. 14-CV-5617, 2016 WL 6778886, at *2 (N.D.
Ill. Nov. 16, 2016). Under Rule 15(a)(2), “[t]he court
should freely give leave [to amend a pleading] when justice
so requires” before trial. Rule 15(a)(2) affords
“[d]istrict courts . . . 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.” Hukic v. Aurora Loan Servs., 588 F.3d
420, 432 (7th Cir. 2009) (quoting Arreola v.
Godinez, 546 F.3d 788, 796 (7th Cir. 2008)); accord
Bell v. Taylor, 827 F.3d 699, 705 (7th Cir. 2016)
(quoting Bethany Pharmacal Co., v. QVC, Inc., 241
F.3d 854, 861 (7th Cir. 2001)). “If the underlying
facts or circumstances . . . may be a proper subject of
relief, [a party] ought to be afforded an opportunity to test
[its] claim on the merits.” Foman v. Davis,
371 U.S. 178, 182 (1962).
franchisees operated the three restaurants Magee tried to
visit late at night, and so McDonald's does not oppose
substituting McDonald's USA as the proper defendant on a
theory that those three restaurants' leases name
McDonalds USA as the lessor. Br. Opp'n to Mot. Leave to
File 2d Am. Compl. (“Br. Opp'n”) 1, ECF No.
64 (stressing that neither company admits liability). The
proposed SAC does not substitute, however. It adds
McDonald's USA. See ECF No. 50-2 at
The court nonetheless grants Magee's request for leave to
add McDonald's USA under the theory to which
objects that allowing Magee to add his contentions about the
“McDonald's System” would be futile and would
also unduly delay this case by injecting an entirely new
issue which would “dwarf” the grounds on which
this case has been litigated. Oppn' Br. 2. Neither
court analyzes futility first. To decide whether an amendment
is futile, the court determines whether the proposed amended
complaint could withstand a Rule 12(b)(6) motion to dismiss.
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi.
and Nw. Ind., 786 F.3d 510, 524 (7th Cir. 2015) (citing
Gen. Elec. Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1085 (7th Cir. 1997)).
d 's does not mount a Rule 12(b)(6) attack on the
proposed SAC on its face. Rather, McDonald's points to
excerpts of a lease, manual, and franchise agreement to show
that franchisees are independent businesses. See
Opp'n Br. 3-6 (quoting Ex. A, C, D, ECF No. 64-1). Magee
replies that McDonald's has provided limited excerpts of
documents governing the relationship between franchisees on
the one hand and McDonald's USA on the other. Magee's
reply effectively amounts to a request for more time to
explore the pertinent issues in discovery. Also, the
excerpted franchise and lease agreement in the record, Ex. C,
D, covers only one of the three restaurants Magee describes
visiting in his complaint, and it is a California restaurant
he visited once rather than the the Louisiana restaurant near
his home. Compare Ex. C at 1 (San Francisco
McDonald's), with FAC ¶¶ 33-40.
court asks here only whether filing the proposed SAC would be
futile. To consider the evidence attached to McDonald's
response to the instant motion, the court would need to
convert a hypothetical Rule 12(b)(6) motion to a motion for
summary judgment and afford Magee adequate time to conduct
discovery before deciding it. See Fed. R. Civ. P.
12(d) (requiring conversion of Rule 12(b)(6) motion when
material outside the pleadings is presented and the court
relies on it and stating that “[a]ll parties must be
given a reasonable opportunity to present all the material
that is pertinent” before a motion to dismiss for
failure to state a claim is converted to a motion for summary
judgment). Because “the test for futility does not
depend on whether the proposed amendment could potentially be
dismissed on a motion for summary judgment, ”
McDonald's futility argument must fail. Arnaout,
2016 WL 6778886, at *4 (quoting Peoples v. Sebring
Capital Corp., 209 F.R.D. 428, 430 (N.D. Ill. 2002))
(alterations omitted, other citation omitted); see also
Runnion, 786 F.3d at 529 (quoting Bausch v. Stryker
Corp., 630 F.3d 546, 561) (7th Cir. 2010) (stressing, on
Rule 12(b)(6) analysis of futility of amending complaint,
that a plaintiff should not be required “to plead
information she could not access without discovery”).
undue delay, McDonald's points out that approximately
twelve months passed between the filing of Magee's FAC in
June 2016 and the instant motion, but the time needed to
brief and decide McDonald's motion to dismiss the FAC
accounts for most of that time period. Magee amended his
complaint once on June 7, 2016, ECF No. 4, but he did so
within two weeks after he filed his original complaint on May
26, 2016, ECF No. 1. All of this occurred before
McDonald's appeared. See Fed. R. Civ. P.
15(a)(1)(A) (allowing a complaint to be amended once as a
matter of course within twenty-one days after it is served).
Much of the ensuing delay resulted from McDonald's motion
practice. McDonald's moved to dismiss t h e FA C for
failure to state a claim. See Fed. R. Civ. P.
12(b)(6). Discovery did not begin while that motion was
pending. See Fed. R. Civ. P. 26(d)(1). The court
granted the motion to dismiss in part and denied it in part
on February 15, 2017. See ECF No. 33 at 11.
Discovery apparently began sometime after that date; the
parties reported that it was underway on March 1, 2017.
See Minute Entry, ECF No. 34. Two months later, the
parties reported that written discovery was ongoing. ...