United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
proceeding pro se, filed this action alleging
employment discrimination by his former employer, Defendant
Johnsonville Sausage LLC (“Johnsonville”).
(Docket #1). On May 30, 2017, Plaintiff filed a motion for
leave to amend his complaint and to join his wife, Monic
Booker, who also worked for a time at Johnsonville, as a
plaintiff. (Docket #27). Johnsonville opposes both requests.
Rule of Civil Procedure 15(a) provides that leave to amend a
complaint “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). Courts favor granting
leave to amend, but they act within their discretion to deny
such leave when there is a substantial reason to do so.
Select Creations, Inc. v. Paliafito Am., Inc., 830
F.Supp. 1213, 1216 (E.D. Wis. 1993). This includes undue
delay, bad faith, dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, or futility of the
amendment. Foman v. Davis, 371 U.S. 178, 182 (1962);
Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290
F.3d 843, 849 (7th Cir. 2002).
Court must deny Plaintiff's motion. First, Plaintiff has
waited until the eve of the dispositive motion deadline,
which is June 30, 2017, (Docket #23), to raise new claims of
discrimination and retaliation both as to himself and his
wife. These claims, if permitted, would alter the scope of
the litigation and require substantial additional discovery.
This would, in turn, force Johnsonville to incur added
expense and cause considerable disruption in the Court's
longstanding trial schedule, which has been in place since
early December 2016. See (Docket #15). Plaintiff
offers no viable argument to justify such delay.
Campania, 290 F.3d at 849 (“A trial court may
deny leave to amend when the amendment would cause the
opposing party to bear additional discovery costs litigating
a new issue[.]”).
does Plaintiff explain why these claims were not raised
earlier, although they were known to him before he filed this
action. Plaintiff's original complaint concerned only
matters arising as of the date he filed his Equal Opportunity
Employment Commission (“EEOC”) charge of
discrimination on February 12, 2016. Yet now, Plaintiff wants
to complain about his suspension in March 2016 and his
separation from Johnsonville in April 2016, both of which he
alleges occurred in retaliation for his charge of
discrimination. (Docket #27 at 1). He also wants to join his
wife's claims which allegedly arose around the same time.
(Docket #30 at 6-9). Even assuming that these new claims are
sufficiently related to Plaintiff's existing claims to
skirt Title VII's exhaustion requirement, see Graham
v. AT&T Mobility, LLC, 247 F. App'x 26, 29 (7th
Cir. 2007), Plaintiff does not justify his delay in raising
these claims despite knowing their factual bases long before
suit was filed. See Lac Courte Oreilles Band of Lake
Superior Chippewa Indians of Wis. v. United
States, 367 F.3d 650, 668 (7th Cir. 2004). Indeed,
Plaintiff already tried to raise these claims three months
ago, and the Court instructed him to submit an amended
complaint in compliance with the applicable rules.
See (Docket #19). Waiting until this late hour to
comply with the Court's directive is inexcusable.
Plaintiff's reference to his pro se status
cannot forgive his delay in amending his complaint or his
failure to include these allegations in the original
complaint. See (Docket #30 at 2-3). While the Court
is required to liberally construe Plaintiff's pro
se filings, it cannot create factual allegations from
whole cloth. See Williams v. Kotkosky, Case No.
16-CV-442-JPS, 2017 WL 913613, at *1 (E.D. Wis. Mar. 7, 2017)
(“Though the Court is required to liberally construe a
pro se party's filings, it cannot act as his
lawyer, and it cannot delve through the record to find
favorable evidence and argument for him.”). The
generous standard of review provided to Plaintiff is meant to
forgive the kinds of technical pleading errors non-lawyers
might make, Erickson v. Pardus, 551 U.S. 89, 94
(2007); it cannot be employed to manufacture the allegations
and legal theories necessary for a pro se
litigant's recovery. As such, Plaintiff's pro
se status does not validate his dilatory request to
amend his complaint.
as to Plaintiff's wife in particular, there is no reason
why they should bring their claims together in this action
under the rules of joinder. See Fed. R. Civ. P.
20(a)(1) (plaintiffs may join together in one suit only if
they have any joint claim arising out of the same transaction
or occurrence). Plaintiff baldly contends that they each
suffered the same instances of discrimination and retaliation
while working at Johnsonville, (Docket #27 at 2), but in his
reply, Plaintiff reveals that his wife's complaints arise
from actions taken by other co-workers and supervisors, on
different dates, from those implicated in Plaintiff's
claims. See (Docket #30 at 6-7). In fact,
Johnsonville has submitted unrebutted evidence that
Plaintiff's wife is still pursuing her administrative
remedies as to the instances of workplace discrimination she
allegedly experienced, (Docket #29-1), and her charges of
discrimination do not map onto Plaintiff's allegations.
Considering Plaintiff's and his wife's claims and
attendant circumstances holistically, it is clear that they
do not bear a sufficient logical relationship to each other
which would suggest that they must be heard together. See
State Farm Fire & Cas. Co. v. Electrolux Home Prods.,
Inc., No. 11-cv-8946, 2012 WL 1287698, at *6 (N.D. Ill.
Apr. 16, 2012) (citing Bd. of Regents of Univ. of Wis.
Sys. v. Phoenix Int'l Software, Inc., 653 F.3d 448,
469 (7th Cir. 2011)).
Plaintiff is mistaken that his wife's claims can or
should be brought alongside his simply because they are
married or because she “was grossly affected” by
what happened. (Docket #30 at 3-4). At most, this argument
establishes that she may be a witness to some of the
incidents underlying his claims, but it does not follow that
her claims belong in this suit. As such, the rules of joinder
(and exhaustion of administrative remedies) indicate that she
should not be joined as a plaintiff. George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007); Rush v.
McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.
IT IS ORDERED that Plaintiff's motion for leave to amend
his complaint (Docket ...