United States District Court, W.D. Wisconsin
WISCONSIN MASONS HEALTH CARE FUND, WISCONSIN MASONS APPRENTICESHIP & TRAINING FUND, GARY BURNS in his capacity as Trustee, BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND, INTERNATIONAL MASONRY INSTITUTE, BRICKLAYERS & ALLIED CRAFTWORKERS DISTRICT COUNCIL OF WISCONSIN, WISCONSIN LABORERS HEALTH FUND, BUILDING & PUBLIC WORKS LABORERS VACATION FUND, WISCONSIN LABORERS APPRENTICESHIP & TRAINING FUND, and JOHN J. SCHMITT (in his capacity as Trustee), WISCONSIN LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, WISCONSIN LABORERS DISTRICT COUNCIL, BUILDING TRADES UNITED PENSION TRUST FUND and SCOTT J. REDMAN in his capacity as Trustee, INDUSTRY ADVANCEMENT PROGRAM/CONTRACT ADMINISTRATION, Plaintiffs,
SID'S SEALANTS, LLC and SIDNEY N. ARTHUR, Defendants.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
in this case are representatives of defendant Sid's
Sealants, LLC's employees, alleging that Sid's and
defendant Sidney Arthur failed to make required contributions
to the employees' trust funds, in violation of the
Employee Retirement Income Security Act, the Labor Management
Relations Act, and state law. Now plaintiffs are seeking
leave to expand the scope of their complaint to include
claims that defendants failed to make required contributions
related to: (1) a second weekly paycheck the employees
received when they worked more than 40 hours; and (2) hours
worked for defendants by employees of a company called North
Shore Restoration. Dkt. 20. Plaintiffs are also seeking leave
to conduct discovery on the new claims. Dkt. 25. For the
reasons explained below, the court will grant the first
motion and deny the second motion as moot.
parties debate whether Rule 15 or Rule 16 of the Federal
Rules of Civil Procedure governs plaintiffs' motion for
leave to amend their complaint. The answer to the debate is
provided in the preliminary pretrial conference order:
“Amendments to the pleadings may be filed and served
without leave of court through the date set forth above [May
19, 2017]. After that, Federal Rule of Civil Procedure 15
applies, and the later a party seeks leave of the court to
amend, the less likely it is that justice will require the
amendment.” Dkt. 12, at 1. See also Sanchelima
Int'l, Inc. v. Walker Stainless Equip. Co., No.
16-cv-644, 2017 WL 3499350, at *1 (W.D. Wis. Apr. 17, 2017)
(Rule 15 governs motion for leave to amend complaint filed
after date in preliminary pretrial conference order). Under
Rule 15(a)(2), courts must give leave “freely” to
parties to amend their pleadings, “when justice so
requires, ” but parties are not entitled to such leave
when “there is undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies, unfair prejudice to
the defendants, or where the amendment would be
futile.” Hukic v. Aurora Loan Services, 588
F.3d 420, 432 (7th Cir. 2009).
do not contend that plaintiffs' proposed amendment is
futile or that it was brought in bad faith. Their primary
contention is that there was undue delay. On that point, the
court agrees; plaintiffs have not made a persuasive showing
that they were unable to bring their new claims much earlier.
Plaintiffs filed their motion on September 12, 2017, eight
months after they filed their lawsuit, and more than six
months after the preliminary pretrial conference. Plaintiffs
say that they did not have the information they needed to
bring the new claims until August 2017, but the new
information comes primarily from the declaration of Eric
Holmes, a Sid's employee who is represented by the same
counsel as the plaintiffs in this case and is suing the same
defendants in another case for failing to pay him overtime.
Holmes v. Sid's Sealants, LLC, 16-cv-821-wmc
(W.D. Wis.). Counsel for plaintiffs do not even try to
explain why they were unable to speak with Holmes about these
undue delay on its own is generally not a sufficient ground
for denying a motion for leave to amend; there must be unfair
prejudice as well. Dubicz v. Commonwealth Edison
Co., 377 F.3d 787, 792 (7th Cir. 2004). This is where
defendants' objection falls flat. Defendants allege only
in the most general terms that allowing plaintiffs to amend
their complaint would “creat[e] additional and
substantial litigation costs.” Dkt. 22, at 8.
Defendants neither provide details nor explain why their
costs would be greater now than if plaintiffs had amended
their complaint earlier, which are the only type of costs
that matter. This is because the question is not simply
whether allowing plaintiffs to expand their claims will
prejudice defendants; that is likely to occur any time a
plaintiff amends her complaint to add more claims. The
question is whether defendants will be unfairly
prejudiced, or, in other words, whether defendants will bear
additional costs and burdens or somehow be disadvantaged in a
way they would not have been had the plaintiffs amended their
complaint earlier. Because defendants do not identify any way
they have been harmed by plaintiffs' delay, this counsels
in favor of granting plaintiffs' motion.
court's one concern is that the deadline for filing
dispositive motions is December 15, 2017, little more than a
month away. But defendants do not dispute plaintiffs'
representation in their motion that defendants should already
have all the relevant documents related to these claims, so
they should not need to do discovery in order to move for
summary judgment on the claims. And because the new claims
are closely related to the old ones, the new claims should
not take the case in any significant new directions. If that
turns out to be incorrect or defendants otherwise believe
that they need more time to prepare in light of the new
claims, defendants may seek to adjust the deadline (sooner
rather than later), explaining in as much detail as they can
what they need and why they need it.
acknowledge that they will need discovery, which is why they
filed their motion to conduct discovery on the claims even
before the court could rule on their motion for leave to file
an amended complaint. It is likely that plaintiffs will not
have sufficient time to obtain discovery and seek summary
judgment on the new claims. That is the price that plaintiffs
pay for waiting as long as they did to seek an amendment, but
it is not a reason for denying the amendment altogether.
the court will grant plaintiffs' motion for leave to
amend. That decision moots plaintiffs' request to conduct
discovery because the parties do not need the court's
permission to conduct discovery on a pending claim.
ORDERED that plaintiffs' motions for leave to amend their
complaint, Dkt. 20, is GRANTED and their motion for leave to
conduct discovery on ...