United States District Court, S.D. Indiana, Indianapolis Division
TRACI BRINGLE, RICHARD JONES, BETTY JONES, A. M. A Minor, Plaintiffs,
SCOTT BRINGLE, Defendant.
ORDER ON PENDING MOTIONS
Baker United States Magistrate Judge
Traci Bringle has filed a motion to amend her complaint.
[Filing No. 21.] Her motion has drawn a strong
objection from Defendant Scott Bringle, who asserts the
motion is an untimely and procedurally deficient attempt to
“seek a do-over.” [Filing No. 22, at ECF p.
1.] Defendant also has filed a motion to strike
Plaintiffs reply brief. [Filing No. 24.] As
explained below, the Court grants Plaintiffs motion to amend
[Filing No. 21] and Defendant's motion to strike
[Filing No. 24]. However, the amended complaint will
be deemed filed as of the date of this order, which may
result in statute of limitations problems.
filed their original complaint on March 27, 2019, alleging
Defendant engaged in illegal interception and disclosure of
wire, oral and electronic communications in violation of 18
U.S.C. § 2511. [Filing No. 1]. Plaintiffs also
alleged numerous violations of Indiana common law.
[Filing No. 1, at ECF p. 1.] Defendant responded to
Plaintiffs' complaint by filing a motion for a more
definite statement, which the Court granted on June 7, 2019.
[Filing No. 16.] The Court ordered Plaintiffs to
file an amended complaint within 14 days. [Filing No.
16.] Plaintiffs failed to comply. Thus, on July 8, 2019,
Defendant moved to dismiss Plaintiffs' complaint.
[Filing No. 17.] Plaintiffs once again did not
respond to Defendant's motion. On August 22, 2019, the
Court entered an order of dismissal without prejudice.
[Filing No. 19.] On October 2, 2019, the Court
entered a minute entry [Filing No. 20] noting that
more than 30 days had passed since the Court's August 22
order and Plaintiffs had not sought to file an amended
complaint or otherwise prosecute this matter. The Court
informed the parties that absent a motion for leave to amend
or other filing within 14 days of the Court's October 2
order, the Court would convert its prior dismissal to a
dismissal with prejudice. [Filing No. 20.]
October 16, 2019, Plaintiff Traci Bringle filed her motion
for leave to file amended complaint. [Filing No.
21.] Plaintiff acknowledges the belatedness of the
motion but seeks leave to amend her original complaint for
good cause under Fed.R.Civ.P. 15(a)(2). [Filing No. 21,
at ECF p. 1-2.] Plaintiff notes that the parties have
not yet resolved their state divorce case and that
Plaintiff's counsel unexpectedly and permanently
relocated from Indianapolis to Washington D.C. in June 2019
and was ill for a period of the relocation time. [Filing
No. 21, at ECF p. 1-2.] In addition, Plaintiff alleges
that Defendant has already admitted to necessary elements of
Plaintiff's claims. [Filing No. 21, at ECF p.
disputes that he has admitted to anything. [Filing No.
22, at ECF p. 7.] Defendant also questions whether this
Court has jurisdiction to review Plaintiff's motion and
argues that Plaintiff's motion should be denied for
procedural shortcomings and for lack of good cause.
[Filing No. 22, at ECF p. 3-4.] Alternatively,
Defendant argues that Plaintiff should be required to re-file
her case. [Filing No. 22, at ECF p. 8.] Finally,
Defendant requests that reinstatement be conditioned upon
dismissal with prejudice of all the time-barred claims and
that the Court impose costs pursuant to Fed.R.Civ.P. 41(d).
[Filing No. 22, at ECF p. 11-12.]
seeks leave to amend her original complaint under
Fed.R.Civ.P. 15(a)(2). Under Rule 15(a)(2), “a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” Id.
The rule states that “[t]he court should freely give
leave when justice so requires.” Id.
counters that this Court does not have jurisdiction to review
Plaintiff's motion. [Filing No. 22, at ECF p.
3.] Defendant cites Paganis v. Blonstein, 3
F.3d 1067, 1070 (7th Cir. 1993), for the proposition that
once a district court enters judgment on a dismissal, the
plaintiff may only amend the complaint under Fed.R.Civ.P.
15(a) with leave of court after making a motion under
Fed.R.Civ.P. 59(e) or Fed.R.Civ.P. 60(b) and once the
judgment has been set aside or vacated. However, in this
case, the Court had not yet entered judgment. The Court
entered an order dismissing the case without prejudice and
notified the parties that in 14 days, that order would be
converted to an order with prejudice. Plaintiff's amended
complaint was filed within the last deadline set by the
Court. Thus, contrary to Defendant's argument, Plaintiff
did not need to file a Rule 59(e) or Rule 60(b)
noted above, under Fed.R.Civ.P. 15(a)(2), Plaintiff may amend
her pleading only with either the opposing party's
written consent or leave from the Court. In this case,
Defendant strongly objects to amending the complaint. Thus,
Plaintiff's only path forward is with leave from the
Court, which Rule 15(a)(2) says should be freely given when
justice requires. Id. See, e.g., Barry
Aviation Inc. v. Land O'Lakes Municipal Airport
Comm'n, 377 F.3d 682, 687 (7th Cir. 2004)
(“Leave to amend a complaint should be freely given
when justice so requires. In the absence of any apparent or
declared reason-such as undue delay, bad faith, or dilatory
motive on the part of the movant, repeated failures to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.-the leave sought
should, as the rules require, be freely given.”
(Internal citations and quotation marks omitted)).
case, there are no accusations of bad faith or dilatory
motives. Plaintiff acknowledges that she filed her motion
roughly 120 days late in relation to the Court's first
order seeking an amended complaint. [Filing No. 21, at
ECF p. 2.] But “delay by itself is normally an
insufficient reason to deny a motion for leave to amend.
Delay must be coupled with some other reason. Typically, that
reason. . . is prejudice to the non-moving party.”
Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793
(7th Cir. 2004) (internal citation omitted). Defendant has
not indicated-and the Court is unaware-of any prejudice to
Defendant by allowing Plaintiff to amend her complaint per
the Court's order and in light of Defendant's motion
for a more definite statement. Plaintiff does not raise new
claims or require additional discovery, but rather clarifies
the claims that were already present. Thus, the Court grants
Plaintiff's motion. [Filing No. 21.]
the Seventh Circuit has long noted: “ ‘Without
prejudice' does not mean ‘without consequence'.
If the case is dismissed and filed anew, the fresh suit must
satisfy the statute of limitations.” Powell v.
Starwalt, 866 F.2d 964, 966 (7th Cir. 1989). Moreover,
“a suit dismissed without prejudice is treated for
statute of limitations purposes as if it had never been
filed.” Elmore v. Henderson, 227 F.3d 1009,
1011 (7th Cir. 2000). See, e.g., Jones v. Bull
Moose Tube Co., No. 09 C 3122, 2010 WL 1781710, at *4
(N.D. Ill. April 26, 2010) (“Elmore stands for
the principle that once a complaint is dismissed without
prejudice, it is as if the complaint had never been
filed.”). See also Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1023 (7th Cir. 2013)
(noting cases in the Seventh Circuit holding that
“dismissal of an entire suit (not just a complaint)
without prejudice can mean that the applicable statute of
limitations will have run before the plaintiff can correct
the problem. For purposes of a statute of limitations, it is
as if the dismissed suit had never been filed.”).
the Court grants Plaintiff's motion to the extent
Plaintiff's amended complaint is deemed filed as of the
date of this order. However, the statute of limitations will
not be ...