United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on a Motion for Leave to File
Amended Complaint [DE 74], filed by Plaintiff on February 7,
2017. Plaintiff requests leave to file an amended complaint.
Defendants filed a response on February 28, 2017, and
Plaintiff filed a reply on March 7, 2017. On March 10, 2017,
Defendants filed a Motion for Leave to File a Sur-Reply to
Plaintiff's Motion for Leave to File Amended Complaint
[DE 88], to which Plaintiff did not object within the time
allowed. Upon review of the Motion for Leave to File a
Sur-Reply and noting the lack of objection, the Court hereby
GRANTS the Motion for Leave to File a
Sur-Reply [DE 88] and considered the sur-reply in its
filed this contract dispute case in Indiana State Court on
July 25, 2015, and Defendants later removed it to federal
court on September 3, 2014. Plaintiff alleges, in relevant
part, that it leased a printing press from Defendants Konica
Minolta Business Solutions and Konica Minolta Premier Finance
(collectively “Konica Minolta”) in 2012.
Plaintiff also alleges that the printing press later failed
to perform as expected.
attached a four-page copy of the Premier Lease Agreement as
Exhibit A to its Complaint, stating that the exhibit was a
“true and exact copy of [the] lease.” Compl. at 2
[DE 6]. The bottom of the second page of the Agreement
states, “See reverse side for additional terms and
conditions.” As the Agreement appears in the Complaint,
the second page includes sixteen additional terms and
instant Motion for Leave to Amend, Plaintiff asserts that its
owner, Henry Delbrey, discovered an original copy of the
Agreement on February 2, 2017, while sorting through old
files in his office. According to Mr. Delbrey's
affidavit, the newfound original copy does not contain the
sixteen additional terms and conditions included in Exhibit A
to the Complaint. In light of this, Plaintiff seeks to amend
its Complaint to include the original copy of the Agreement
without the additional terms and conditions.
Scheduling Order, the Court set the deadline for Plaintiff to
amend its pleadings to March 13, 2015. Although it filed its
Motion to Amend well after that deadline, Plaintiff provides
no direct argument on why it should be extended.
does not address the untimeliness of its Motion and argues
only that amendment is appropriate only under Federal Rule of
Civil Procedure 15(a)(2), which provides that the Court
“should freely give leave when justice so
requires.” However, when a party moves to amend its
complaint after the amendment deadline set in a Rule 16
order, the Court first considers whether to extend the
deadline under the “heightened good-cause standard of
Rule 16(b)(4) before considering whether the requirements of
Rule 15(a)(2) were satisfied.” Alioto v. Town of
Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). “In
making a Rule 16(b) good-cause determination, the primary
consideration for district courts is the diligence of the
party seeking amendment.” Id. at 720
case, Mr. Delbrey's affidavit shows that he discovered
the original Agreement - the one without the additional terms
and conditions - in his office on February 2, 2017, five days
before Plaintiff filed the instant Motion to Amend. According
to Mr. Delbrey, the original Agreement was not in his file
folders titled “Minolta” or “KM Capital,
” but in a miscellaneous folder. Mr. Delbrey explains,
“Whenever I get a bill from a new company I create a
folder for that company and put the folder in my filing
cabinet.” Affidavit at 1 [DE 74-1]. So, at the time he
signed the Agreement, Mr. Delbrey apparently did not have a
folder for Konica Minolta-related documents; he created that
folder only after Konica Minolta sent him his first invoice
under the contract. Mr. Delbrey says that he “must have
placed . . . the original Premier Lease Agreement . . . into
[his miscellaneous] folder” after signing it and never
moved it to the Minolta or KM Capital folder.
facts do not constitute good cause to extend the amendment
deadline. Plaintiff did not act diligently - carefully,
contentiously - to ensure that the appropriate documents were
included with the Complaint before the time for amended
expired two years ago. Mr. Delbrey knew his own business
practices and methods for creating folders upon receiving an
invoice. As a result, when gathering documents for this case,
it was his responsibility to determine whether there were
other documents related to this litigation in his files.
Plaintiff failed to conduct appropriate due diligence during
discovery to confirm it was relying on an appropriate copy of
the Agreement before the time for amendment expired.
According to Mr. Delbrey, he signed two original copies of
the Agreement, kept one, and gave one to Konica Minolta.
Plaintiff could have - but apparently did not - asked Konica
Minolta for its original copy during discovery to confirm
that the copies matched.
the point, Mr. Delbrey says that the Agreement attached as
Exhibit A to the Complaint is a “photocopy” of
the original Agreement. How a “photocopy” might
include terms and conditions not in the original Agreement is
not clear. To the contrary, Defendants say the additional
terms and conditions were printed on the reverse side of the
signed Agreement, consistent with the “See reverse side
for additional terms and conditions” language.
Defendants confirm that Exhibit A to the Complaint is
accurate. Consequently, it appears Plaintiff's confusion
over which pages were or were not part of the Agreement may
have been the result of a copying error.
because Plaintiff fails to show good cause for extending the
amendment deadline, the instant Motion is untimely and ...