UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

MELISSA WILKES and BENJAMIN )

WILKES, on behalf of themselves and )

all others similarly situated, )

Plaintiffs, )

)

v. ) CAUSE NO.: 4:16-CV-38-JVB-PRC

)

CARESOURCE INDIANA, INC., et al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion for Leave to File Third Amended

Complaint [DE 41], filed by Plaintiffs Melissa Wilkes and Benjamin Wilkes on September 1, 2017.

Defendants CareSource Management Group Co. and CareSource Indiana, Inc. filed a response on

September 15, 2017. Plaintiffs filed a reply on September 18, 2017.

This litigation is brought pursuant to the Telephone Consumer Protection Act. Plaintiffs

allege that Defendants placed automated calls to Plaintiffs without consent. Plaintiffs, through the

proposed Third Amended Complaint seek to add Eliza Corporation as a defendant. Defendants

object on the grounds that Plaintiffs have not shown good cause for filing the instant motion after

the deadline to amend pleadings, this litigation can easily be resolved through a motion for summary

judgment, and Defendants will be prejudiced because, as of the date of the filing of the response,

Defendants were preparing their Motion for Summary Judgment—which Defendants filed on

October 10, 2017.

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).

The Court set the deadline to file motions for leave to amend the pleadings in this case for

April 10, 2017, and the instant motion was filed on September 1, 2017. Federal Rules of Civil

Procedure 6(b) and 16 govern the permission of filing the instant motion after the deadline for the

amendment of pleadings. See Alioto v. Town of Lisbon, 651 F.3d 715, 719-720 (7th Cir. 2011)

(discussing the interplay between Federal Rules of Civil Procedure 15(a) and 16(b)). Rule 6(b)(1)

provides:

When an act may or must be done within a specified time, the court may, for good

cause, extend the time: 

(A) with or without motion or notice if the court acts, or if a request is made,

before the original time or its extension expires; or 

(B) on motion made after the time has expired if the party failed to act

because of excusable neglect. 

Fed. R. Civ. P. 6(b)(1). Rule 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). The Court finds that Plaintiffs have

shown both good cause under Rule 16(b) and excusable neglect under Rule 6(b) for seeking leave

to amend the complaint after the expiration of the court-imposed deadline.

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Plaintiffs did not cite the standards of Rules 6(b) and 16(b) in their motion. However, they

explain that they became aware on May 18, 2017, that Eliza Corporation made the alleged calls at

issue in this litigation. Plaintiffs further clarify that, because Eliza Corporation acted as Defendants’

agent, Plaintiffs were not originally interested in adding Eliza Corporation as a defendant because

Plaintiffs believe Defendants to be vicariously liable for Eliza Corporation’s actions. It was not until

Plaintiffs learned, “a few weeks” prior to the filing of the instant motion, that Defendants were

seeking to limit the putative class members to Indiana residents only that Plaintiffs had a need to add

Eliza Corporation.

Defendants respond that an employee of Eliza Corporation was disclosed in February 2017

and that Eliza Corporation’s role was disclosed in May 2017. Defendants further note that Plaintiffs

sought and received permission to file their Second Amended Complaint in August 2017, and

Defendants reason that Plaintiffs could have sought to add Eliza Corporation in that pleading.

Despite Defendants’ arguments, Plaintiffs have shown excusable neglect for missing the deadline

and good cause for an extension of the deadline because Plaintiffs were not aware of their need to

add Eliza Corporation until the dispute regarding the geographical scope of the putative class arose.

Defendants’ other two arguments are connected and based on the premise that granting the

instant motion will affect the now-pending Motion for Summary Judgment. However, Plaintiffs’

request to amend their complaint predates Defendants’ Motion for Summary Judgment. Defendants

provide no support for their assertion that the prejudice suffered by the proposed amended

pleading’s effect on a later-filed motion is sufficiently prejudicial to warrant denying a motion to

amend.

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Defendants maintain that this case can be resolved through their Motion for Summary

Judgment. The proposed Third Amended Complaint does not substantively affect Defendants’

argument that Plaintiffs provided consent for the telephone calls, which is the sole ground upon

which Defendants move for summary judgment. Thus the Motion for Summary Judgment “may very

well be amenable to” decision on the merits, perhaps with supplemental briefing, after the Third

Amended Complaint is filed. Lauer v. Patriot Paint Co., No. 1:06-CV-244, 2007 WL 2068595, at

*3 (N.D. Ind. July 17, 2007); see also JMB Mfg., Inc. v. Child Craft, LLC, No. 4:11-cv-65-TWPWGH, 2013 WL 623517, at *2 (S.D. Ind. Feb. 19, 2013) (denying a request to strike a motion for

summary judgment after a motion to amend the pleadings was granted); Sasse v. Illinios Cent. R.R.

Co., No. 3:06-cv-121-DRH, 2006 WL 1722369, at *1 (S.D. Ill. June 22, 2006) (finding, in granting

a motion to amend the pleadings, that a pending motion for summary judgment was not rendered

moot).

Based on the foregoing, the Court hereby GRANTS Plaintiffs’ Motion for Leave to File

Third Amended Complaint [DE 41]. The Court ORDERS Plaintiffs Melissa Wilkes and Benjamin

Wilkes to FILE the Third Amended Complaint and proposed summons immediately upon receipt

of this Opinion and Order.

SO ORDERED this 1st day of February, 2018.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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