United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Leave to File
Second Amended Complaint [DE 20] filed by the plaintiff,
Adrian Santos III, on August 31, 2017. For the following
reasons, the motion is GRANTED.
28, 2017, the plaintiff, Adrian Santos III, filed a Complaint
[DE 1] against the defendants, John Buncich, Lake County
Sheriff, and Lake County, Indiana. Buncich filed a Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [DE 11] on August
3, 2017. Santos, in response, filed an Amended Complaint [DE
14] pursuant to Fed.R.Civ.P. 15(a)(1) on August 8, 2017.
District Court Judge Rudy Lozano denied Buncich's motion
to dismiss as moot based on the amended complaint superseding
the original complaint.
defendants filed Motions to Dismiss Amended Complaint
Pursuant to Fed.R.Civ.P. 12(b)(6) [DE 16, 18], on August 22,
2017 and August 28, 2017, respectively. In response, Santos
has requested leave to file a second amended complaint. The
court, as requested by the parties, has stayed the briefing
schedule and ruling on the defendants' motions to dismiss
until the court rules on the pending motion.
proposed second amended complaint, Santos has alleged claims
based on the ADA, 42 U.S.C. § 12112(b)(4), the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a), et seq.,
and 42 U.S.C. § 1983, to enforce the First and
Fourteenth Amendments of the U.S. Constitution. Santos has
indicated that the proposed second amended complaint names
the Lake County Sheriff's Department as a defendant,
clarifies the Sheriff's formal authority to dismiss
county police officers after Merit Board action, expands the
allegations related to the role of the County, adds the fact
that Buncich was convicted in federal court, and adds the
fact that the Merit Board met a second time to address
has requested leave to file a second amended complaint to
address issues that were raised in the defendants'
motions to dismiss and to address the fact that Buncich no
longer is the Sheriff of Lake County. Buncich has objected to
the motion, while Lake County has not filed an objection.
Rule of Civil Procedure 15(a) provides that a party
may amend the party's pleading only by leave of court or
by written consent of the adverse party and that leave shall
be freely given when justice so requires. Because pleadings
merely serve to put the opposing side on notice, they should
be amended freely as the case develops, as long as amendments
do not unfairly surprise or prejudice the opposing party.
Rule 15(a); Jackson v. Rockford Housing Authority,
213 F.3d 389, 390 (7th Cir. 2000). The decision to deny leave
to amend a pleading is an abuse of discretion only if no
reasonable person could agree with the decision. Winters
v. Fru-Con, Inc., 498 F.3d 734, 741 (7th Cir. 2007)
(quoting Butts v. Aurora Health Care, Inc., 387 F.3d
921, 925 (7th Cir. 2004)); Ajayi v. Aramark Business
Services, 336 F.3d 520, 530 (7th Cir. 2003).
to amend properly may be denied at the district court's
discretion for “undue delay, bad faith, or 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, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d
222 (1962); Gandhi v. Sitara Capital Management, 721
F.3d 865, 868-869 (7th Cir. 2013).
has argued that the proposed second amended complaint fails
to cure the same deficiencies found in the amended complaint.
Buncich further has asserted that seeking an amendment to
indicate that he no longer is sheriff is not an adequate
reason to file a second amended complaint. An action does not
abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office
while the action is pending. Federal Rule of Civil
Procedure 25(d). The officer's successor
automatically is substituted as a party. Federal Rule
of Civil Procedure 25(d).
Buncich has argued that the proposed second amended complaint
adds additional deficiencies and causes undue delay. The
proposed second amended complaint adds the Lake County
Sheriff's Department as a defendant, while also asserting
a claim against Buncich in his official capacity as the
Sheriff of Lake County. Therefore, he has argued that a suit
against him, a public employee, in his official capacity is a
suit against the government entity, Lake County Sheriff's
Department, and therefore is duplicative.
has indicated that while the motion requests leave to file a
second amended complaint, this is the first amendment aimed
at Lake County's motion to dismiss that was filed on
August 28, 2017. The deadline to respond to Buncich's
first motion to dismiss expired before Lake County's
answer or motion to dismiss was due. Lake County has not
objected to Santos' motion to file a second amended
complaint. Further, Santos has indicated that the Lake County
Sheriff's Department was added as a defendant to help
resolve an issue presented in Lake County's motion to
has claimed that the filing of the second amended complaint
would cause undue delay. Undue delay alone, however, is not a
sufficient basis for denying leave to amend. Dubicz v.
Commonwealth Edison Co.,377 F.3d 787,
793 (7th Cir. 2004). Rather, to support denial, such delay
must be coupled with another reason-most commonly unfair
prejudice, but also bad faith, a dilatory motive, or when the