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Stimac v. J. C. Penney Corp., Inc.

United States District Court, N.D. Illinois, Eastern Division

January 22, 2018




         Plaintiff's Amended Motion for Leave to File Plaintiff's Amended Complaint [39] is GRANTED. Plaintiff shall promptly file her Amended Complaint as a separate docket entry. Defendants shall answer or otherwise plead within 14 days of filing.


         Plaintiff Suzanne Stimac (“Plaintiff”) commenced this suit on February 8, 2016, asserting negligence against Defendant J.C. Penny arising from a slip and fall incident that occurred on October 3, 2014. Fact discovery closed on September 12, 2017, at which time parties had completed eleven depositions, including depositions on Plaintiff, Plaintiff's husband, two bystanders, six current or former J.C. Penney employees, and the Plaintiff's primary treater, Dr. Ali. (Dkt. 41 at 2). On November 6, 2017, Plaintiff filed the instant motion, requesting leave to file an amended complaint. Plaintiff seeks to add an alternative legal theory of res ipsa loquitor in Count II and a premises liability claim in Count III. (Dkt. 39 at 1). This new theory and claim arise out of the occurrence of October 3, 2014, as set forth in Plaintiff's February 8, 2016 Complaint.[1] (Id.)


         A party may amend its complaint “with the opposing party's written consent or the court's leave, ” which “should [be] freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Supreme Court has emphasized that “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). “By its plain terms, the rule reflects a liberal attitude towards the amendment of pleadings-a liberality consistent with and demanded by the preference for deciding cases on the merits.” Duthie v. Matria Healthcare, Inc., 254 F.R.D. 90, 94 (N.D. Ill. 2008). The decision whether to allow an amended pleading is left to the court's discretion. Chatham v. Davis, 839 F.3d 679, 686 (7th Cir. 2016). The court “should only refuse to grant leave where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants or where amendment would be futile.” In re Abbott Depakote S'holder Derivative Litig., 909 F.Supp.2d 984, 1000 (N.D. Ill. 2012); see Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). The Seventh Circuit has noted, delay alone is generally an insufficient ground to justify denial of a leave to amend; rather, “[d]elay must be coupled with some other reason;” usually, that reason is “prejudice to the non-moving party.” Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004). In opposing the mo- tion to amend, Defendant argues that the amended complaint would unduly prejudice Defendant and cause undue delay. (Def.'s Response, Dkt. 41 at 4).

         A. Undue Prejudice

         Because almost every amendment to a complaint results in some prejudice to the opponent, the operative inquiry is whether the resulting prejudice is undue. See Carlson v. Northrop Grumman Corp., No. 13 C 2635, 2014 WL 5334038, at *3 (N.D.Ill. Oct. 20, 2014). Undue prejudice exists “when the amendment brings entirely new and separate claims . . . or at least entails more than an alternative claim or a change in the allegations of the claimant and when the additional discovery is expensive and time-consuming.” In re Ameritech Corp., 188 F.R.D. 280, 283 (N.D.Ill. 1999) (internal citations omitted) (emphasis added). “[A] party seeking an amendment carries the burden of proof in showing that prejudice will result to the non-moving party.” See King v. Cooke, 26 F.3d 720, 724 (7th Cir. 1994).

         Defendant argues that Plaintiff's newly proposed Count II, premised on the theory of res ipsa loquitur, presents a new legal issue of exclusive control which does not exist in ordinary negligence actions. Defendant claims that allowing the amendment would be unduly prejudicial because Defendant would be “deprived of the benefit of discovery to assist in disproving the element of exclusive control.” (Def.'s Response, Dkt. 41 at 4-5). A plaintiff seeking to rely on the doctrine of res ipsa loquitur “must plead and prove that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant's exclusive control.” Salata v. Coca-Cola Re- freshments USA, Inc., No. 15-CV-248, 2016 WL 1623292, at *5 (N.D.Ill. Apr. 25, 2016), citing Heastie v. Roberts, 226 Ill.2d 515, 531-32, 877 N.E.2d 1064, 1076 (2007).

         While the Court acknowledges that Count II presents a new and separate legal issue of exclusive control, the Court is not convinced that additional “expensive and time-consuming” discovery would be required. See In re Ameritech Corp., 188 F.R.D. 280 at 283. In her reply, Plaintiff pointed to deposition testimony with J.C. Penny employees and Plaintiff's request to admit, where Plaintiff's counsel asked about the element of “control” and/or “exclusive control.” (Pl.'s Reply, Dkt. 42, at 6-8). Plaintiff argues that given this testimony, “there is no apparent need for additional, expensive and time-consuming discovery on this issue.” (Id. at 8). Given that the issue of exclusive control involves only Defendant's witnesses, it is not clear to this Court what extensive additional discovery is required. And Defendant does not specify what additional discovery, if any, would be needed to defend against this new count. Indeed, “just because additional discovery will be necessary is not a reason by itself to deny a motion to amend.” Carlson, 2014 WL 5334038, at *3. The Court finds that any additional discovery needed on this limited issue would not be so extensive and costly as to justify denying a motion to amend.

         Next, Defendant argues that the premises liability claim in Count III introduces “unique elements and standards into this litigation, which do not exist in negligence, including the ‘unreasonableness' of the risk itself, the ‘constructive notice' element, and proof issues surrounding whether invitees would or would not ‘discover the danger.'” (Def.'s Resp. Dkt 41, at 6), citing Gutterman v. Target Corp., No. 15c5714, 2016 WL 397377, at *1 (N.D.Ill. Feb. 2, 2016).[2] A plaintiff must prove the following elements to recover in a premises-liability case: “(1) A condition on the property presented an unreasonable risk of harm to people on the property; (2) The defendant knew or in the exercise of ordinary care should have known of both the condition and the risk; (3) The defendant could reasonably expect that people on the property would not discover or realize the danger or would fail to protect themselves against such danger; (4) The defendant was negligent in one or more ways; (5) The plaintiff was injured; and (6) The defendant's negligence was a proximate cause of the plaintiff's injury.” Hope v. Hope, 398 Ill.App.3d 216, 219-20, 924 N.E.2d 581, 584 (2010). Defendant claims that it would be severely prejudiced because it was unable to “elicit testimony and/or documents relating to these new allegations.” (Def.'s Resp., Dkt 41, at 1).

         The Court acknowledges that the newly proposed premises liability count introduces a new claim with distinct elements of proof. See Gutterman v. Target Corp., 2016 WL 397377, at *1 (“Courts have recognized the independence of [negligence and premises liability] and have highlighted the different elements required to prove each one.”). However, as with Count II, the Court is not convinced that extensive and costly discovery would be needed to defend against this claim. Plaintiff argues that she, not Defendant “will incur substantial hardship” with the addition of a premises liability action because Illinois courts have required plaintiffs to prove actual or constructive notice. (Pl.'s Reply, Dkt. 42 at 6), citing Smart v. City of Chicago, 2013 Il App (1st) 120901 (2013); Reed v. Wal-Mart Stores, Inc. 298 Ill.App.3d 712 (1998). Although Plaintiff bears the burden to prove actual or constructive notice, Defendant still must defend against this claim. However, Defendant did not specify what, if any, additional discovery would be required to do so. The Court finds, as above, that any additional discovery would not be so time consuming and expensive as to justify denying this motion to amend. See Cohn v. Taco Bell Corp., No. 92 C 5852, 1993 WL 390176, at *3 (N.D. Ill. Oct. 1, 1993) (“The fact that extra discovery is required once the Complaint is amended is not enough by itself to warrant denial of the motion to amend.”).

         B. Undue Delay

         Defendant argues that Plaintiff “was admittedly aware of these additional counts throughout fact discovery, but failed to allege them in a timely manner, constituting undue delay.” (Def.'s Response, Dkt. 41 at 1). The moving party bears the burden of demonstrating that the delay in seeking the amendment is justified. In re Ameritech Corp.,188 F.R.D. 280 at 286. Nonetheless, “delay alone will not generally justify denying a motion to amend a pleading absent a showing of prejudice from the delay.” King, 26 F.3d at 723. “Where the proposed causes of action are related to the claims contained in the initial complaint, and where the ...

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