United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY JUDGE
Plaintiff in this litigation, Birch|Rea Partners, Inc.,
commenced this action by filing a Complaint on February 13,
2018. The Complaint alleges that Defendant, Regent Bank, and
its successors Stonegate Bank and Home BancShares, Inc.,
committed the tort of malicious prosecution when Regent Bank
initiated and pursued litigation against Birch|Rea in federal
court (the Underlying Litigation). Plaintiff later sought
leave to amend its Complaint to add as defendants the
banks' attorneys who, it alleges, also engaged in the
wrongful use of civil proceedings along with their clients.
4, 2019, Magistrate Judge Susan Collins denied
Plaintiff's request to amend its Complaint. This matter
is now before the Court on Plaintiff's Objections to the
June 4, 2019 Order of Magistrate Judge Susan Collins [ECF No.
74]. For the reasons stated in this Opinion and Order, the
Objections are overruled.
Federal Rule of Civil Procedure 15 and 16
Federal Rule of Civil Procedure 15, a party may amend his
pleading once as a matter of course within twenty-one days
after serving it, or if the pleading is one to which a
responsive pleading is required, twenty-one days after
service of a responsive pleading or twenty-one days after
service of a motion under Federal Rule of Civil Procedure
12(b), (e), or (f), whichever is earlier. Fed.R.Civ.P.
15(a)(1). Otherwise, a plaintiff may amend only by leave of
the court or by written consent of the adverse party.
Fed.R.Civ.P. 15(a)(2). Leave to amend is freely given when
justice so requires. Fed.R.Civ.P. 15(a)(2). However, this
right is not absolute, Brunt v. Serv.
Employees Int'l Union, 284 F.3d 715, 720 (7th
Cir. 2002), and can be denied for undue delay, bad faith,
dilatory motive, prejudice, or futility. Ind.
Funeral Dirs. Ins. Trust v.
Trustmark Ins. Corp., 347 F.3d 652, 655
(7th Cir. 2003).
the requirements of Rule 15 must be read in conjunction with
the requirements of Federal Rule of Civil Procedure 16
because once the district court has filed a pretrial
scheduling order pursuant to Rule 16 establishing a time
table for amending pleadings, that rule's standards
control. Alioto v. Town of Lisbon, 651 F.3d 715, 719
(7th Cir. 2011); BKCAP, LLC v. Captec Franchise Trust
2000-1, 3:07-cv-637, 2010 WL 1222187, at *2 (N.D. Ind.
Mar. 23, 2010) (citing Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.
1992)). Rule 16(b)(3)(A) requires that the scheduling order
“limit the time to join other parties, amend the
pleadings, complete discovery, and file motions.”
“a party seeking to amend a pleading after the date
specified in a scheduling order must first show ‘good
cause' for the amendment under Rule 16(b); then, if good
cause is shown, the party must demonstrate that the amendment
is proper under Rule 15.” BKCAP, 2010 WL
1222187, at *2 (quoting Tschantz v. McCann, 160
F.R.D. 568, 571 (N.D. Ind. 1995)); see also Alioto,
651 F.3d at 719-20 (collecting cases). “A court's
evaluation of good cause is not coextensive with an inquiry
into the propriety of the amendment under . . . Rule
15.” Tschantz, 160 F.R.D. at 571 (quoting
Johnson, 975 F.2d at 609). “Rather, the good
cause standard focuses on the diligence of the party seeking
the amendment.” BKCAP, 2010 WL 1222187, at *2
(citing Tschantz, 160 F.R.D. at 571). It is the
“primary consideration.” Alioto, 651 at
720 (citing Trustmark Ins. Co. v. Gen. & Cologne Life
Re of Am., 424 F.3d 542, 553 (7th Cir. 2005)). “In
other words, to demonstrate good cause, a party must show
that despite its diligence, the time table could not
reasonably have been met.” BKCAP, 2010 WL
1222187, at *2 (citing Tschantz, 160 F.R.D. at 571).
Federal Rule of Civil Procedure 72
to Federal Rule of Civil Procedure 72(a), a party may serve
and file objections to a magistrate judge's order
pertaining to a non-dispositive pretrial matter within 14
days after being served with a copy of the order.
Fed.R.Civ.P. 72(a). “The district judge in the case
must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
law.” Id.; see also 28 U.S.C. §
636(b)(1)(A) (providing for reconsideration by district court
judge of any pretrial matter designated to a magistrate
“where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to
72(a) grants great latitude to magistrate judges to resolve
non-dispositive matters, like the one at issue here. See
Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir.
2006) (holding that a motion to amend the complaint was a
non-dispositive motion even when its denial prevented
plaintiff from adding a defendant). “The clear error
standard means that the district court can overturn the
magistrate judge's ruling only if the district court is
left with the definite and firm conviction that a mistake has
been made.” Weeks v. Samsung Heavy Indus. Co.,
126 F.3d 926, 943 (7th Cir. 1997); see also Pinkston v.
Madry, 440 F.3d 879, 888 (7th Cir. 2006) (referring to
the clear error standard as “extremely
the ‘contrary to law' standard, the district court
conducts a plenary review of the magistrate judge's
purely legal determinations, setting aside the magistrate
judge's order only if it applied an incorrect legal
standard, ” Jensen v. Solvay Chems., Inc., 520
F.Supp.2d 1349, 1351 (D. Wyo. 2007), or if it “fails to
apply or misapplies relevant statutes, case law, or rules of
procedure, ” Pain Ctr. of SE Ind., LLC v. Origin
Healthcare Sols., LLC, No. 1:13-CV-00133-RLY, 2014 WL
6674757, at *2 (S.D. Ind. Nov. 25, 2014) (first quoting
Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749, at
*1 (N.D. Ill. Aug.23, 2011); then quoting Tompkins v.
R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 74 (N.D.N.Y.