UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ARCELORMITTAL INDIANA HARBOR LLC, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:15-CV-195-PRC

)

AMEX NOOTER, LLC, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on ArcelorMittal’s Motion for Leave to File a Second

Amended Complaint [DE 103], filed by Plaintiff ArcelorMittal Indiana Harbor LLC (“Indiana

Harbor”) on August 9, 2016. The motion is fully briefed.

On August 3, 2015, the Court entered a Scheduling Order, setting a deadline of November

30, 2015, to file a motion to amend pleadings and a discovery deadline of August 19, 2016. The jury

trial is scheduled for May 15, 2017. The Court subsequently continued the deadline to amend

pleadings to January 29, 2016, on a finding of good cause made by Amex Nooter.

On July 13, 2016, the Court ruled on Defendant Amex Nooter, LLC’s (“Amex Nooter”)

Motion to Dismiss the First Amended Complaint, denying dismissal but ordering ArcelorMittal USA

LLC to be added as a party plaintiff.

Thus, the instant motion seeks leave of Court to add ArcelorMittal USA LLC as a plaintiff

in compliance with the Court’s July 13, 2016 Order. However, the motion also seeks to add a count

of willful and wanton conduct against Amex Nooter and to seek punitive damages against Amex

Nooter.
Once a court has set a deadline for filing amended pleadings, a motion to amend filed after

that deadline should be evaluated under the “heightened good-cause standard of Rule 16(b)(4) before

considering whether the requirements of Rule 15(a)(2) [are] satisfied.” Alioto v. Town of Lisbon, 651

F.3d 715, 719 (7th Cir. 2011) (citing Trustmark v. Gen. & Cologne Life Re of Am., 424 F.3d 542,

553 (7th Cir. 2005)). Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be

modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).

Federal Rule of Civil Procedure 15(a) provides that a party “may amend its pleading only

with the opposing party’s written consent or the court’s leave” and that “[t]he court should freely

give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has

explained that “freely give” means that a court should not deny leave to file an amended complaint

in the absence of any apparent or declared reasons, “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 prejudice to the opposing party by virtue of allowance of the amendment, futility of

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bausch v. Stryker Corp., 630

F.3d 546, 562 (7th Cir. 2010). The decision whether to grant or deny a motion to amend lies within

the sound discretion of the district court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d

925,

927 (7th Cir. 1990). 

In its motion, Indiana Harbor fails to acknowledge either the January 29, 2016 deadline to

file a motion to amend pleadings or the Rule 16(b)(4) good cause standard.

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In support of the request to add a claim for willful and wonton conduct and punitive

damages, Indiana Harbor explains that, during the course of discovery, it has learned of additional

facts supporting a claim that Amex Nooter performed acts and/or omissions with reckless disregard

of probable injury and that Amex Nooter knew of that probability but engaged in those acts and/or

omissions anyway that allegedly support a claim for punitive damages. 

However, the information was learned through the depositions of three fact witnesses—

Korrie Griffith, Erik Olson, and Eric Frahm, who were deposed on December 22, 2015, November

5, 2015, and February 29, 2016, respectively. Indiana Harbor offers no explanation in its opening

motion as to why it did not move to amend the complaint to add this claim after the first two

depositions and prior to the January 29, 2016 deadline to amend pleadings, or, why, if it did not

know of the claim until after taking the February 29, 2016 deposition, it did not timely file a motion

at that time. Notably, Indiana Harbor does not contend in its motion that it did not know of the claim

until the February 29, 2016 deposition. Even if it did, Indiana Harbor offers no explanation for the

apparent almost six-month delay in bringing the motion, which was also brought ten days before the

close of discovery. The Court finds that Indiana Harbor has not demonstrated that it was diligent in

seeking this amendment. Arguments that should have been made in the opening brief but that are

raised for the first time in the reply brief are untimely and not considered in the ruling. Thus, the

Court finds that Indiana Harbor has not shown good cause and the motion is denied.

Nevertheless, the Court notes that, in its reply brief, Indiana Harbor asserts that it was

diligent in seeking leave to add this count because the Court did not rule on Amex Nooter’s

December 21, 2015 Motion to Dismiss until July 13, 2016, and thus, “this was . . . the first

opportunity” to seek leave to amend. Indiana Harbor cites no legal authority for this argument. The

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pendency of a motion to dismiss does not preclude a plaintiff from seeking to amend the complaint

and is not a basis for waiting to seek leave to amend. Plaintiffs frequently seek leave to amend while

a motion to dismiss is pending and courts address both motions accordingly.

In addition, the Court denies the request to add the claim of willful and wanton conduct on

the basis of undue delay and undue prejudice to Amex Nooter. As noted above, the pending motion

to dismiss did not prevent Indiana Harbor from filing a motion to amend to add a newly discovered

claim. Even if Indiana Harbor had a reasonable basis to believe that the motion to dismiss prevented

it from filing a motion to amend, Indiana Harbor could have sought an extension of the deadline to

amend pleadings as early as February 2016; it did not. Indiana Harbor unduly delayed in bringing

this motion.

And, the undue delay results in undue prejudice to Amex Nooter. In an attempt to

demonstrate its diligence under Rule 16(b) in its reply brief, Indiana Harbor details the extensive

discovery that it has undertaken in support of this proposed new claim. Thus, while Indiana Harbor

benefitted from knowing of its intent to bring the claim and conducted related discovery, Amex

Nooter was without knowledge of the claim and, thus, could not avail itself of the opportunity to

conduct discovery on the issue itself. Discovery has closed. The dispositive motion deadline is set

for November 2, 2016, the final pretrial conference is set for April 14, 2017, and the jury trial is set

for May 15, 2017. 

Indiana Harbor’s proposed Count II alleges that Amex Nooter’s conduct in numerous

separate respects was somehow intentional, reckless, and/or quasi criminal: its training and

monitoring of employees, failure to enforce safety policies and procedures, failure to correct a

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culture where employees disregarded instructions, failure to discipline and remove unsafe

employees, failure to properly communicate with and monitor employees, failure to maintain the

isolation on the subject valve, failure to properly lockout and tag out a natural gas line, failure to

train particular employees in numerous respects, failure to establish particular safety programs,

failure to establish appropriate hazard control procedures, failure to monitor and supervise

pipefitters, failure to correct a pattern and practice of disregard of instructions by employees, failure

to establish proper communication channels, failure to communicate “dangerous conditions,” failure

to follow disciplinary procedures, failure to follow its drug testing policy, failure to follow the

advice of a supervisor, allowing an employee to work around natural gas despite “previous unsafe

work,” holding itself out as an experienced pipefitting company, and failure to avoid a risk of an

explosion by “remedying [its] many failures.” (Proposed Sec. Am. Compl. ¶¶ 91-111). Discovery

would need to be reopened, and Amex Nooter, which did not have the benefit of knowing of this

claim during the course of discovery, would likely incur significant additional cost in redeposing

witnesses and conducting additional discovery. Thus, the motion is also denied under Rule 15(a).

Based on the foregoing, the Court hereby GRANTS in part and DENIES in part

ArcelorMittal’s Motion for Leave to File a Second Amended Complaint [DE 103]. The Court grants

leave to amend to add Plaintiff ArcelorMittal USA LLC but denies the request to add a claim of

willful and wanton conduct and punitive damages. The Court ORDERS Plaintiff to FILE a Second

Amended Complaint consistent with this Opinion and Order on or before September 23, 2016.

SO ORDERED this 15th day of September, 2016.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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