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Hibbert v. Schmitz

United States District Court, C.D. Illinois

April 3, 2018

CHRISTINA HIBBERT, Plaintiff,
v.
LEO P. SCHMITZ, et al., Defendants.

          OPINION

          TOM SCHANZLE-HASKINS, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Plaintiff Christina Hibbert's Motion for Leave to File Amended Complaint (d/e 17). For the reasons set forth below, the Motion is ALLOWED.

         BACKGROUND

         Plaintiff Hibbert was a civilian employee of the Illinois State Police. The Defendants were officers of the Illinois State Police. On several occasions in October, November, and December of 2014, Hibbert had sex with Illinois State Police Master Seargent Anthony L. McClure in the Illinois State Police headquarters office building. McClure and Hibbert had sex in a closed conference room during working hours. In November and December of 2014, Defendant Agnes Kindred-Johnson arranged for installation of video cameras in the conference room to establish that McClure and Hibbert were having sex in the office during working hours.

         The Illinois State Police went through an extensive administrative process to terminate McClure. During the course of the administrative proceedings, the Defendants subpoenaed Hibbert's personal cell phone. McClure was ultimately terminated. Hibbert was also terminated.

         Hibbert brought this action alleging two counts. Complaint (d/e 1). She alleged that securing her phone through use of a subpoena violated her rights under the Fourth Amendment. Complaint, Count I. She also alleged that under the Fourth Amendment, she had a reasonable expectation of privacy to have sex in an Illinois State Police conference room, and Defendants violated her right by installing video cameras and recording her sexual activities. Complaint, Count II.

         The Court issued a Scheduling Order on February 17, 2017 (d/e 14). The Scheduling Order set May 15, 2017, as the deadline for amending pleadings or adding parties, and December 15, 2017, as the deadline for completing discovery. Scheduling Order, at 1-2. On September 27, 2017, the Court extended the deadline to complete discovery to February 15, 2018. Text Order entered September 27, 2017.

         On January 18, 2018, Hibbert took the deposition of Defendant Kindred-Johnson. Kindred-Johnson testified that she set up the video cameras in November and December 2014. She also testified that Illinois State Police Deputy Director Bryan Ley set up cameras in the conference room in October 2014. The cameras that Ley set up also recorded Hibbert having sex with McClure. Memorandum of Law in Support of Motion for Leave to File Amended Complaint, at 1-2.

         Hibbert did not know about the October 2014 video recordings until the January 2018 deposition. Hibbert states that the October 2014 recordings were not disclosed in McClure's administrative proceedings or in discovery prior to this deposition. Id. at 3. Defendants do not dispute this. See Response to Plaintiff's Motion to Amend (d/e 19) (Response), at 6-7.

         On February 15, 2018, the Court extended the deadline to complete discovery to March 15, 2018. Text Order entered February 15, 2018. On March 14, 2018, Hibbert deposed Ley and confirmed that he installed the cameras and recorded her and McClure in October 2014.

         On March 15, 2018, Hibbert filed the Motion to amend her complaint to add Ley as a defendant and to add an additional Count III, claiming violation of Hibbert's Fourth Amendment rights based on substantially the same theory as Count II. Defendants oppose the Motion.

         ANALYSIS

         Hibbert seeks to amend the pleadings and add a party after the May 15, 2017 deadline in the Scheduling Order. Hibbert must first establish good cause to amend the Scheduling Order before she may proceed with the Motion. Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). Hibbert claims she had good cause because she did not know of the possibility that Ley placed cameras in the conference room and recorded her having sex until January 2018, and she did not confirm that fact until she deposed Ley in March 2018. Ley's recording of her in October 2014 was not disclosed in any of the administrative proceedings or in earlier discovery in this proceeding. The Court finds that discovery on new evidence such as this is sufficient to constitute good cause. See Direct Enterprises Inc. v. Sensient Colors LLC, 2017 WL 2985623, at *3 (S.D. Ind. July 13 2017); Armitage v. Apex Control Systems, Inc., 2010 WL 4318846, at *1 (S.D. Ind. October 26, 2010).

         The Defendants argue Hibbert did not have good cause because she did not act diligently. She delayed filing the motion until 10 months after the May 15, 2017 deadline to amend. In support of this argument, Defendants cite Bell v. Taylor, 827 F.3d 699 (7th Cir. 2016). In Bell, however, the plaintiff discovered the new evidence in April 2013. The deadline to amend was set on July 15, 2013. The plaintiff did not file the motion to amend until March 2014. Bell, 827 F.3d at 705. Hibbert did not ...


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