UNITED STATES DISTRICT COURT

NORTHER DISTRICT OF INDIANA

FORT WAYNE DIVISION

SARATOGA POTATO CHIPS COMPANY, )

INC., a/k/a Olde York Potato Chips, et al., )

)

Plaintiffs, )

)

v. ) CAUSE NO. 1:12-CV-452

)

CLASSIC FOODS, INC., et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court is a Motion for Leave to File Amended Complaint (Docket # 63) filed

by Plaintiffs Saratoga Potato Chip Company, Inc., and Saratoga Potato Chips, LLC (together,

“Saratoga”), on June 4, 2014, seeking to name Balance Foods, Inc. (“Balance”), as an additional

defendant under theories of alter ego and successor liability. Defendant Cuetara Foods, Inc.

(“Cuetara”), opposes Saratoga’s motion on the grounds that it is untimely and futile. For the

following reasons, Saratoga’s motion to amend–which the Court deems to be a motion for leave

to file a supplemental pleading under Federal Rule of Civil Procedure 15(d)–will be GRANTED.

A. Factual and Procedural Background

 On October 18, 2012, Saratoga filed this breach of contract action against Defendants

Cuetara and its alleged “d/b/a” or subsidiary, Classic Foods, Inc. (“Classic”), in the Allen

Superior Court. (Docket # 1.) Defendants removed the case here based on diversity of

citizenship, 28 U.S.C. § 1332. (Docket # 2.) This suit stems from Defendants’ purported failure

to pay approximately $368,646.56 for snack foods ordered from Saratoga during July 2011 to

January 2012, and failure to make payments under an August 2012 agreement settling a prior
lawsuit filed by Saratoga on the matter. (Docket # 1.) 

The Court conducted a preliminary pretrial conference on February 28, 2013, setting the

following deadlines: April 1, 2013, for Saratoga to seek leave of Court to amend the pleadings

and join additional parties; and September 1, 2013, for the completion of all discovery. (Docket

# 16, 17.) 

On April 17, 2013, Saratoga filed a motion for partial summary judgment with respect to

Classic’s breach of the settlement agreement (Docket # 18), which the Court granted on March

27, 2014 (Docket # 45). On July 10, 2013, Cuetara filed a motion for judgment on the pleadings

(Docket # 33); but at the same time that the Court was granting judgment against Classic, the

Court denied Cuetara’s motion, finding that Saratoga had, at least, adequately alleged direct,

alter ego, and piercing the corporate veil liability (Docket # 45 at 6). 

At an April 17, 2014, status conference before Judge Van Bokkelen, the parties stated

that discovery was not concluded with respect to Cuetara, because they had put it “on hold”

while the motion for judgment on the pleadings was pending.1

 (Docket # 51.) On April 22,

2014, the parties stipulated to a final judgment against Classic in the amount of $368,646.56,

which the Court granted. (Docket # 57.) Accordingly, on May 7, 2014, the Clerk entered a

judgment in favor of Saratoga and against Classic in the amount of $368,646.56. (Docket # 58,

60.)

On June 4, 2014, Saratoga filed the instant supplemental pleading, seeking to add

Balance as a defendant liable for Classic’s debt under theories of alter ego and successor

1 The Docket, however, does not reflect that the September 1, 2013, discovery deadline was ever extended. 

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liability. (Docket # 63.) In doing so, Saratoga asserts it recently discovered that on April 7,

2014–after the partial summary judgment was granted–Classic transferred, without notice to

Saratoga, all of its assets to Balance, a corporation controlled by Florencio Cuetara, the President

of Classic and Cuetara. (Pls.’ Mem. of Law 4.) Saratoga alleges that Classic’s “pre-acquisition

business is now being conducted by Balance Foods in substantially the same manner, by

substantially the same personnel, at the same physical facility, and using much of the same

equipment and supplies.” (Pls.’ Mem. of Law 4.) As Saratoga sees it, Defendants have

employed a scheme to render Classic judgment proof in this suit. (Pl.’s Mem. of Law 5.) 

Cuetara filed a timely objection to Saratoga’s motion, claiming that the supplemental

complaint was untimely, lacks an adequate jurisdictional statement, inappropriately seeks

recovery against Classic, and fails to state a plausible claim for relief against Balance. (Docket #

65.) Saratoga replied on June 13, 2014 (Docket # 66), and thus, the motion is now fully briefed. 

B. Standard of Review

Under Rule 15(d), “the court may, on just terms, permit a party to serve a supplemental

pleading setting out any transaction, occurrence, or event that happened after the date of the

pleading to be supplemented.” “To determine whether ‘just terms’ exist for motions to

supplement under Rule 15(d), the court uses the same factors as those used for motions to amend

under 15(a).” Masonite Corp. v. Craftmaster Mfg., Inc., No. 09 cv 2131, 2011 WL 1642518, at

*1 (N.D. Ill. Apr. 29, 2011) (citing Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir.

1996)). “Accordingly, leave to supplement the pleadings should be granted when there is no

apparent reason for denying leave such as ‘undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the

amendment, etc.’” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Ind.

Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003). 

“Events that may be asserted in a supplemental pleading need not rise out of the same

transaction or occurrence as the original claim, so long as they bear ‘some relationship’ to the

original pleading.” Means v. Dunedin Apartments, No. 3:10-cv-2, 2010 WL 1490494, at *3

(N.D. Ind. Apr. 13, 2010) (quoting 3 James Wm. Moore, Moore’s Federal Practice § 15.30 (3rd

ed. 2008)); accord United States v. State of Indiana, No. 2:96-cv-95, 2009 WL 3067087, at *3

(N.D. Ind. Sept. 18, 2009). That is, “[a] party may supplement his or her pleading through Rule

15(d) to add new defendants and new claims, but only if adequately related to the originally

stated claims.” Harris v. Morton, No. 9:05-cv-1049, 2007 WL 2365994, at *1 (N.D. N.Y. Aug.

15, 2007); see Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 226-27 (1964)

(“Rule 15(d) . . . plainly permits supplemental amendments to cover events happening after suit,

and it follows, of course, that persons participating in these new events may be added if

necessary.”).

“A supplemental pleading promotes as complete an adjudication of the dispute between

the parties as possible. It is a tool of judicial economy and convenience, which serves to avoid

the cost, delay and waste of separate actions which must be separately tried and prosecuted.”

Habitat Educ. Ctr., Inc. v. Kimball, 250 F.R.D. 397, 401 (E.D. Wis. 2008) (internal quotation

marks and citations omitted). “Thus, when a supplemental pleading facilitates the efficient

administration of justice, a court should allow it.” Id. Ultimately, the decision to grant or deny

leave to file a supplemental pleading is within the court’s discretion. Wilson v. Gipson, No. 3:94-

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cv-891RP, 1995 WL 476695, at *2 (N.D. Ind. July 20, 1995) (citing Twin Disc, Inc. v. Big Bud

Tractor, 772 F.2d 1329, 1338 (7th Cir. 1985)). 

In addition to Rule 15(d), “Rule 16 . . . requires ‘good cause’ to modify a scheduling

order.” Masonite Corp., 2011 WL 1642518, at *1 (quoting Fed. R. Civ. P. 16(b)(4)). “Good

cause depends on whether the moving party, which missed the scheduled deadline, nonetheless

exercised due diligence.” Id. “If Rule 16(b) applies, the court should apply it first, followed by

any appropriate Rule 15 analysis.” Id. 

C. Discussion

1. Saratoga shows good cause for the supplemental pleading.

Saratoga’s motion to file a supplemental pleading comes fourteen months after the

deadline to join additional parties and amend the pleadings, and nine months after the deadline

for the close of discovery. Thus, before turning to Rule 15(d), Saratoga must establish “good

cause” under Rule 16(b)(4) to modify the scheduling order. That is, Saratoga must show that

“despite its diligence, the time table could not reasonably have been met.” Menendez v. WalMart Stores East L.P., No. 1:10-cv-53, 2012 WL 2159186, at *1 (N.D. Ind. June 13, 2012). 

Saratoga easily establishes good cause for modification of the scheduling order. Classic

purportedly assigned its assets on April 7, 2014, without notice to Saratoga. After learning of

the assignment from a third party, Saratoga filed the instant motion on June 4, 2014. Thus,

Saratoga brought the motion less than two months after the assignment occurred. Accordingly,

there is no evidence, nor does Cuetara even suggest, that Saratoga failed to act with reasonable

diligence after learning of the assignment. And, of course, Saratoga could not have sought to

amend its complaint to add Balance by the deadline set by the Court’s scheduling order, since

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the assignment did not occur until well after the deadline had passed. Accordingly, Saratoga’s

motion passes Rule 16(b)(4) scrutiny. 

2. There is no undue delay, dilatory motive, or futility.

Moving on to Rule 15(d), Cuetara argues that leave to file the supplemental pleading

should be denied because it is untimely and futile. As discussed above, although Saratoga’s

motion is indeed untimely with respect to the deadline set in the scheduling order, it acted with

reasonable diligence once it learned of the assignment. Thus, there is no evidence of “undue

delay” or “dilatory motive” on Saratoga’s part here. Masonite Corp., 2011 WL 1642518, at *1.

a. The jurisdictional statement is adequate.

As to futility, Cuetara asserts that Saratoga’s proposed amended complaint is deficient in

several respects, rendering it futile. First, it contends that the complaint has a “deficient

jurisdictional statement with respect to the parties–Balance, in particular–under 28 U.S.C. §

1332.” (Objection to Pl.’s Mot. 1.) But that assertion is unfounded; the proposed amended

complaint adequately alleges diversity jurisdiction. It reflects that Saratoga Potato Chip

Company, Inc., is a Canadian corporation with its principal place of business in Ontario, and that

Saratoga Potato Chips, LLC, is solely owned by Peter Margie, a citizen of Canada. (Proposed

Am. Compl. ¶¶ 1-3.) As to Defendants, it reflects that Classic, Cuetara, and Balance are each

Delaware corporations with a principal place of business in California. (Proposed Am. Compl. ¶¶

4-6.) In addition, the complaint alleges that the amount in controversy is at least $368,646.56.

(Proposed Am. Compl. ¶¶ 18-19.) 

b. The assignment document does not make the supplemental complaint futile.

Next, Cuetara points out that the assignment document, which was attached to Saratoga’s

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supporting memorandum, transferred Classic’s assets to Cienega, LLC, not Balance. According

to Cuetara, this document belies Saratoga’s allegations that Classic transferred its assets to

Balance, making the proposed supplemental complaint futile. 

But this argument is also unpersuasive. Saratoga contends in its supporting

memorandum that Cienega, a consulting business entity, facilitated the transfer of Classic’s

assets to Balance.2 (Pls.’ Mem. of Law 4.) That the transaction may first have involved a

transfer of Classic’s assets to Cienega, before Balance, can reasonably be inferred and does not

render the complaint futile. 

c. The judgment against Classic does not render the supplemental complaint futile. 

Cuetara also argues that the proposed supplemental complaint is futile because it names

Classic as a defendant, even though a judgment was entered against Classic on May 7, 2014. 

But the judgment against Classic–which allegedly is a “d/b/a” or subsidiary of Cuetara–did not

end the case. Rather, the District Judge articulated in his Order dated March 27, 2014, that

Saratoga alleges “direct, alter ego, and piercing the corporate veil claims” against Cuetara.

(Docket # 45 at 6.) 

The Court will, however, strike Count V of the proposed complaint, which recites

Saratoga’s breach of settlement agreement claim against Classic. This claim was reduced to a

judgment on May 7, 2014 (Docket # 57), and thus, Saratoga can no longer assert that claim

against Classic. 

For that same reason, the Court will strike any claim in Count VIII against Classic for

2 Saratoga states that Cienega’s motto on its website is: “Professional Business Consultants . . . who go where lawyers

should not go and where accountants do not want to go!” (Pl.’s Mem. of Law 4.)

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attorney’s fees and costs for enforcing the terms of the Settlement Agreement. That claim was

also reduced to a judgment on May 7, 2014 (Docket # 57), and thus, Saratoga can no longer

assert the claim against Classic. 

d. Basing certain allegations “on information and belief” does not cause futility.

And finally, Cuetara claims that Saratoga’s basing certain allegations “on information

and belief” renders the proposed supplemental complaint “insufficient to state a plausible claim,”

and thus, futile. (Objection to Pls.’ Mot. 1.) The allegations at issue support the alter ego and

successor liability theories and assert that: (1) Balance and Cuetara are the alter egos of Classic;

(2) Balance, Cuetara, and Classic are so closely connected that Balance and Cuetara are

responsible for Classic’s actions; (3) Classic, Cuetara, and Balance are located in the same

offices and use the same telephone numbers and website; (4) Balance is liable for Classic’s debts

under successor liability; and (5) Classic fraudulently sold its assets to Balance for the purpose

of evading liability. (Proposed Am. Compl. ¶¶ 51, 52, 56, 59, 60.) 

As a general rule, “allegations . . . cannot be faulted for their reliance on ‘information and

belief.’” Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005). “[N]othing in either Twombly or

Iqbal suggests that pleading based upon ‘information and belief’ is necessarily deficient.”

Simonian v. Blistex, Inc., No. 10 cv 1201, 2010 WL 4539450, at *3 (N.D. Ill. Nov. 3, 2010); see

Vance v. Bureau of Collection Recovery, LLC, No. 10-cv-6324, 2011 WL 881550, at *3 (N.D.

Ill. Mar. 11, 2001) (“[T]here is nothing per se improper about pleading allegations ‘upon

information and belief.’”) (collecting cases). Thus, contrary to Cuetara’s urging, “pleading in

this manner is not categorically improper, especially when information lies uniquely within the

control of the defendant.” Simonian, 2010 WL 4539450, at *3. 

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Federal Rule of Civil Procedure 9(b), however, requires that “the circumstances

constituting fraud . . . shall be stated with particularity.” UniQuality, Inc., v. Infotronx, Inc., 974

F.2d 918, 923 (7th Cir. 1992). “Rule 9(b)’s particularity requirement is not satisfied by

allegations of fraud based on ‘information and belief,’ unless the facts are peculiarly within the

adversary’s knowledge.” Richter v. Corp. Fin. Assocs., LLC, No. 1:06-cv-1623, 2007 WL

1164649, at *1-2 (S.D. Ind. Apr. 19, 2007) (citing Bankers Trust Co. v. Old Republic Ins. Co.,

959 F.2d 677, 684 (7th Cir. 1992)). 

But courts in this district have held that Rule 9(b)’s heightened pleading requirement

should be applied narrowly, and that it does not apply to situations in which a plaintiff claims

relief under an alter ego or successor liability theory. See Mamacita, Inc. v. Colborne Acquisition

Co., LLC, No. 10 C 6861, 2011 WL 881654, at *3 (N.D. Ill. Mar. 11, 2011) (noting as a

preliminary matter the parties’ agreement that Rule 9(b)’s heightened pleading requirements do

not apply to claims of successor liability); Ret. Plan of Unite Here Nat’l Ret. Fund v. Kim, No.

08 C 2435, 2009 WL 413077, at *2 n.1 (N.D. Ill. Feb. 17, 2009) (“Alter ego and successor

liability claims are not subject to Rule 9.”); Flexicorps, Inc. v. Benjamin & Williams Debt

Collectors, Inc., No. 06 C 3183, 2007 WL 3231425, at *3 n.2 (N.D. Ill. Oct. 30, 2007) (“[Rule

9(b)’s] heightened pleading standard does not apply to claims for successor liability.”); Kruse v.

Aamed, Inc., No. 96 C 5344, 1997 WL 102528, at *3 (N.D. Ill. Mar. 4, 1997) (applying Rule

9(b) narrowly and concluding that it does not apply to claims for alter ego liability). 

Applying the foregoing law, Saratoga’s allegations based “on information and belief”

that support its alter ego and successor liability theories do not render the supplemental

complaint futile. The Court will, however, strike the words “fraudulent” in paragraph 17 and

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“fraudulently” in paragraph 60 of the proposed supplemental pleading, because the term causes

those allegations to fall short of satisfying the particularity requirements of Rule 9(b). See

Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007) (“Rule 9(b) applies

to averments of fraud, not claims of fraud, so whether the rule applies will depend on the

plaintiffs’ factual allegations.”). 

3. Cuetara does not argue that it will be unduly prejudiced by the supplemental complaint. 

As stated earlier, Saratoga’s deadline to amend the pleadings passed on April 1, 2013,

and a judgment was entered against Classic on May 7, 2014. But apparently discovery is still

ongoing with respect to Cuetara, and a trial date has not yet been set. Significantly, Cuetara does

not argue that it will be unduly prejudiced by allowing Saratoga to supplement its complaint at

this stage of the proceedings. (See Docket # 65.)

“Generally, a plaintiff may elect to pursue additional claims as a separate action or

through supplemental pleadings. Use of supplemental pleadings is favored when it will permit

the court to provide complete or nearly complete relief in a single action, thus promoting judicial

economy and convenience.” Peterson v. California, No. 1:10-cv-1132, 2011 WL 3875622, at *5

(E.D. Cal. Sept. 1, 2011). Entry of a judgment does not necessarily preclude the use of Rule

15(d). See Cole v. Harris, No. 4:09-cv-2012, 2012 WL 5830524, at *5 (N.D. Ohio Nov. 16,

2012); Princesse D’Isenbourg Et Cie Ltd. v. Kinder Caviar, No. 3:09-29-DCR, 2012 WL

258567, at *1 (E.D. Ky. Jan. 27, 2012); Ctr. for Biological Diversity v. Salazar, No. CV 07-

0038-PHX-MHM, 2010 WL 3924069, at *4 (D. Ariz. Sept. 30, 2010). 

Although a judgment has been entered against Classic, Cuetara remains in the case to

defend against claims that it is liable for Classic’s debt through alter ego and piercing the

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corporate veil theories. (Docket # 45 at 1, 6.) Allowing the supplemental complaint alleging that

Balance is also liable for Classic’s debt through alter ego and successor liability theories will

permit the Court to provide complete or nearly complete relief in a single action, and thus,

promote judicial economy and convenience. See Griffin, 377 U.S. at 227 (stating that

supplemental pleadings covering events that happened after suit and adding persons participating

in those events “are well within the basic aim of the rules to make pleadings a means to achieve

an orderly and fair administration of justice”); Habitat Educ. Ctr., 250 F.R.D. at 401 (explaining

that a supplemental pleading avoids “the cost, delay and waste of separate actions which must be

separately tried and prosecuted”). “[W]hen a supplemental pleading facilitates the efficient

administration of justice, the court should allow it.” Habitat Educ. Ctr., 250 F.R.D. at 401; see,

e.g., Oncology Therapeutics Network Connection v. Va. Hematology Oncology PLLC, No. C 05-

3033 WDB, 2006 WL 334532, at *13-14 (N.D. Cal. Feb. 10, 2006) (allowing proposed amended

complaint advancing alter ego and fraudulent conveyance theories of liability where defendant

failed to identify any resulting prejudice).

Accordingly, the Court will GRANT Saratoga leave to file the supplemental complaint

and add Balance as a defendant. The Court will conduct a scheduling conference once Balance

has been served and appears, and discovery will then be reopened. The Court can still sever the

action in the event Balance identifies residual prejudice. 

D. Conclusion

For the foregoing reasons, Plaintiffs’ Motion for Leave to File Amended Complaint,

which the Court deems to be a motion to file a supplemental complaint (Docket # 63), is

GRANTED, except that the following portions are STRICKEN:

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1. The words “fraudulent” in paragraph 17 and “fraudulently” in paragraph 60;

2. Count V in its entirety, which is Saratoga’s claim against Classic for breach of the

Settlement Agreement that was reduced to a judgment on May 7, 2014; and

3. Count VIII to the extent it advances a claim for attorney’s fees and costs against

Classic for enforcing the Settlement Agreement, which was reduced to a

judgment on May 7, 2014.

The Clerk is DIRECTED to show Plaintiffs’ proposed complaint as filed in accordance with this

Order. 

SO ORDERED.

Enter for June 27, 2014.

S/Roger B. Cosbey 

Roger B. Cosbey

United States Magistrate Judge

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