United States District Court, N.D. Indiana, Hammond Division
LASHAWNDA WALKER, individually and as next friend of her children, D.W., a minor, M.H., a minor, Z.H., a minor and M.W., a minor; KIMBERLY HUNTER, individually and as next friend of her child, M.C., a minor; AMOS WILLIAMS; ROBIN CLINTON, individually and as next friend of her children, J.S. Jr., a minor, J.C., a minor, and A.S., a minor; MARK STENSON; LATASHA EDWARDS, individually and as next friend of her child, B.H., a minor, and DIONNE HENDERSON, individually and as next friend of her children, C.B., a minor, and A.H., a minor, Plaintiffs,
BP PRODUCTS NORTH AMERICA INC.; E I DU PONT DE NEMOURS and COMPANY; and ATLANTIC RICHFIELD COMPANY, Defendants.
OPINION AND ORDER
T. MOODY, JUDGE UNITED STATES DISTRICT COURT
matter is before the court on plaintiffs' motion for
leave to file a third amended complaint. (DE # 88.) For the
reasons identified below, plaintiffs' motion is granted
in part and denied in part.
second amended complaint alleged ten counts against various
defendants, including BP Products North America, Inc.
(“BP”), E I DuPont De Nemours and Company
(“DuPont”), and Atlantic Richfield Company
(“ARCO”) (collectively “defendants”)
relating to plaintiffs' exposure to toxins at the West
Calumet Public Housing Complex. (DE # 36.) This court granted
ARCO's motion to dismiss in its entirety and granted
portions of DuPont's motion to dismiss. (DE # 83.)
Specifically, this court dismissed plaintiffs' 42 U.S.C.
§ 1983 claims against ARCO and DuPont on the basis that
these defendants did not act under color of state law.
(Id. at 9.)
now seek leave to file a third amended complaint, in which
they reintroduce their Section 1983 claims against ARCO and
DuPont and add additional parties. (DE # 88.) Plaintiffs
believe that this court erroneously dismissed their Section
1983 claims against ARCO and DuPont based on the court's
misunderstanding of their claims against these defendants,
and they seek to address these errors by amending their
complaint. (Id. at 1-2.)
and DuPont oppose the motion and argue that plaintiffs'
proposed amended complaint does not add any additional facts
that would permit the court to find that defendants acted
under color of law. Rather, plaintiffs continue to allege
that defendants were state actors because they entered into a
consent decree with two governmental agencies. Defendants
argue that plaintiffs' motion should be denied because
the court dismissed these claims with prejudice and amendment
would be futile.
motion to file a third amended complaint is governed by
Federal Rule of Civil Procedure 15(a)(2). This rule states,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “[T]he decision
to grant or deny a motion to file an amended pleading is a
matter purely within the sound discretion of the district
court.” Brunt v. Serv. Employees Int'l
Union, 284 F.3d 715, 720 (7th Cir. 2002).
“‘Although the rule reflects a liberal attitude
towards the amendment of pleadings, courts in their sound
discretion may deny a proposed amendment if the moving party
has unduly delayed in filing the motion, if the opposing
party would suffer undue prejudice, or if the pleading is
futile.'” Soltys v. Costello, 520 F.3d
737, 743 (7th Cir. 2008) (internal citation omitted).
“There is no abuse of discretion where the district
court denies a motion for leave to amend when the proposed
amendment would not cure the deficiencies identified in the
earlier complaint.” Bell v. City of Chicago,
694 Fed.Appx. 408, 412 (7th Cir. 2017), reh'g and
suggestion for reh'g en banc denied (Aug. 17, 2017).
See also Gonzalez-Koeneke v. West, 791 F.3d 801, 807
(7th Cir. 2015).
Plaintiffs' Claims were Dismissed with Prejudice
and ARCO both oppose plaintiffs' motion to amend on the
basis that plaintiffs are attempting to revive claims that
were dismissed with prejudice. (DE # 92 at 2-3; DE # 94 at
4.) Defendants maintain that because this court did not
provide plaintiffs with an opportunity to replead their
dismissed claims, the dismissal constituted a dismissal with
prejudice. Plaintiffs do not offer any substantive response
to this argument.
41(b) states, “[u]nless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the
merits.” Fed.R.Civ.P. 41. “When a case of which
the court has jurisdiction is dismissed because it fails to
state a claim . . . the dismissal is a merits determination
and is therefore with prejudice.” El v. AmeriCredit
Fin. Servs., Inc., 710 F.3d 748, 751 (7th Cir. 2013).
See also St. John v. Cach, LLC, 822 F.3d 388, 392
(7th Cir. 2016) (dismissal of a case pursuant to Rule
12(b)(6) or 12(c) is a dismissal with prejudice);
Georgakis v. Illinois State Univ., 722 F.3d 1075, 1077
(7th Cir. 2013) (dismissal of a case on the merits is a
dismissal with prejudice unless the court grants the
plaintiff leave to replead).
court's dismissal of plaintiffs' Section 1983 claims
was made on the merits of those claims. The court did not
provide plaintiffs an opportunity to replead. Thus, the
dismissal of those claims was with prejudice.
The Court's Dismissal Order was not ...