UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DANIEL KOCH, on Behalf of Himself and )

All Others Similarly Situated, et al., )

)

Plaintiffs, )

)

v. ) CAUSE NO. 1:14-cv-00072-JVB-SLC

)

JERRY W. BAILEY, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff Daniel Koch, on behalf of himself and a class consisting of persons who were

employed as truck drivers by Jerry W. Bailey Trucking, Inc. (“JWBT”), filed this collective

action under the Fair Labor Standards Act (“FLSA”) on March 7, 2014, seeking to collect unpaid

overtime wages.1 (DE 1). Now before the Court is Plaintiffs’ motion to amend (DE 83) filed on

March 21, 2016, seeking to: (1) add as a named plaintiff George Marlow, who consented to opt

in to the action on March 21, 2014 (DE 11-2); and (2) assert a retaliation claim on Marlow’s

behalf based on events that occurred after he opted in to this action. (DE 83). 

Defendants JWBT, Jerry W. Bailey, and Linda L. Bailey (collectively, the “Defendants”)

filed a response brief in opposition to the motion, arguing that the motion should be denied due

to Plaintiffs’ undue delay in seeking leave to amend, and because the amendment, if allowed,

would result in prejudice to Defendants and duplicative litigation. (DE 84). Plaintiffs did not

file a reply to Defendants’ arguments, and their time to do so has now passed. 

For the following reasons, Plaintiffs’ motion to amend will be DENIED.

1 A second named Plaintiff, Johnny Ray Wells, Jr., was added on March 19, 2014. (DE 10).
A. Procedural Background

Koch filed this collective action against Defendants on March 7, 2014, and then amended

his complaint 10 days later, on March 17, 2014. (DE 1; DE 8). On March 21, 2014, Marlow’s

notice of consent to join the action was filed. (DE 11-2). On May 29, 2014, this Court held a

preliminary pretrial conference and set a discovery deadline of December 31, 2014, but deferred

setting deadlines for seeking leave to file any amendments to the pleadings. (DE 25; DE 26). 

On January 15, 2015, the undersigned Magistrate Judge observed that the discovery period had

concluded. (DE 40). 

On June 24, 2015, pursuant to a stipulation by the parties (DE 58), District Judge Joseph

Van Bokkelen granted class certification under Federal Rule of Civil Procedure 23 and

preliminary certification as a collective action under the FLSA (DE 59). On July 20, 2015,

Judge Van Bokkelen approved proposed notices to class and potential collective action members

(DE 61), and on August 25, 2015, he entered an Order amending the class definitions (DE 68). 

On March 15, 2016, District Judge Van Bokkelen held a status conference and noted that,

despite the expiration of the discovery deadline, Plaintiffs were still anticipating providing

certain discovery responses to Defendants; thus, Judge Van Bokkelen recommended that the

undersigned Magistrate Judge conduct a status conference in 30 days. (DE 82). 

On March 21, 2016, Plaintiffs filed the instant motion to amend. (DE 83). The next day,

Marlow filed a separate suit against Defendants, No. 1:16-cv-00097-TLS-SLC, advancing the

same FLSA retaliation claim as in this suit.

At a status conference on June 6, 2016, the parties reported that discovery is nearly

complete, and thus, the Court set a final discovery deadline of August 31, 2016. (DE 91). The

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parties agreed that adding the proposed retaliation claim would require substantial additional

discovery.

B. Standard of Review

Under Federal Rule of Civil Procedure 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.” In making this determination, the

court analyzes the same factors as those used for motions to amend under 15(a). See Glatt v.

Chi. Park Dist., 87 F.3d 190, 194 (7th Cir. 1996); Masonite Corp. v. Craftmaster Mfg., Inc., No.

09 cv 2131, 2011 WL 1642518, at *1 (N.D. Ill. Apr. 29, 2011). That is, “courts may deny an

amendment 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); see also Foman v. Davis,

371 U.S. 178, 182 (1962). Ultimately, the decision to grant or deny leave to file a supplemental

pleading is within the court’s discretion. See Twin Disc, Inc. v. Big Bud Tractor, Inc., 772 F.2d

1329, 1338 (7th Cir. 1985); Wilson v. Gipson, No. 3:94-cv-891RP, 1995 WL 476695, at *2

(N.D. Ind. July 20, 1995). 

C. Discussion

In the proposed amended complaint, Plaintiffs allege that Marlow quit his employment

with Defendants in October 2012 and went to work for J&T Trucking, a subcontractor of

Defendants, in May 2013. (DE 83-1 ¶¶ 61-64). Plaintiffs further allege that when Defendants

learned that Marlow had opted in to this collection action, Defendants retaliated against Marlow

by instructing J&T Trucking that he was no longer permitted to work on any jobs connected with

Defendants. (DE 83-1 ¶¶ 67-68). 

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Defendants argue that leave to amend to add Marlow’s retaliation claim should be denied

because Plaintiffs delayed nearly two years in seeking leave to amend, and if allowed, the

amendment would result in prejudice to Defendants. Defendants additionally state that Marlow

has already filed a separate lawsuit advancing his retaliation claim, and thus, granting leave to

amend to add the claim in this suit would be duplicative. 

With respect to undue delay, Marlow consented to join this suit in March 2014. Plaintiffs

allege that Defendants learned “[s]hortly thereafter” that Marlow had joined the suit and that

Defendants “[s]ometime thereafter” informed J&T Trucking that Marlow was not permitted to

work on Defendants’ jobs. (DE 83-1 ¶¶ 66-68). Defendants point out that based on these

allegations, Marlow has been suffering from retaliation for nearly two years. Plaintiffs,

however, offer no justification for delaying nearly two years in filing the motion to amend. See

Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995) (denying leave to amend where

plaintiff provided no explanation as to why the amendment did not take place sooner, and where

the delay in filing the motion to amend would cause delay and burden the parties); J.P. Morgan

Chase Bank, N.A. v. Drywall Serv. & Supply Co., Inc., 265 F.R.D. 341 (N.D. Ind. Feb. 3, 2010)

(denying motion to amend filed two years after the initial complaint). 

Discovery in this case is coming to a close, and the amendment adds a different theory

and relies on a new set of facts. In that regard, the parties reported at a recent status conference

that adding the retaliation claim would require substantial additional discovery, including

scheduling several depositions. As such, the Court concludes that affording Plaintiffs leave to

amend after their undue delay would result in prejudice to Defendants by disrupting the progress

of this class and collective action. See George v. Kraft Foods Global, Inc., 641 F.3d 786, 789-91

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(7th Cir. 2011) (affirming the district court’s denial of a motion to amend where discovery was

set to conclude in the next few months and where allowing the amendment would have

substantially disrupted the progress that had been made regarding class certification). Moreover,

Marlow has already filed a separate lawsuit against Defendants advancing his retaliation claim. 

Allowing the amendment in this suit would result in duplicative litigation. 

In sum, because Plaintiffs offered no reason for their undue delay in seeking to add the

retaliation claim, and because the addition of the claim would result in prejudice to Defendants

and duplicative litigation, Plaintiffs’ motion to amend will be DENIED. 

D. Conclusion

For the foregoing reasons, Plaintiffs’ Motion to Amend Complaint (DE 83) is DENIED.

SO ORDERED.

Entered for this 7th day of June 2016.

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

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