UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MARY DORDIESKI, )

 Plaintiff, )

 )

 v. ) CAUSE NO.: 2:15-CV-180-PPS-PRC

)

AUSTRIAN AIRLINES, AG, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Plaintiff, Mary Dordieski’s, Motion For Leave to File First

Amended Complaint [DE 23], filed by Plaintiff Dordieski on September 15, 2015. Defendant

Austrian Airlines, AG filed a response on September 24, 2015. Dordieski filed a reply on October

6, 2015. Austrian Airlines, with leave of the Court, filed a surreply on October 20, 2015.

In the motion, Dordieski seeks to add as a defendant “Swissport Canada Handling, Inc., f.k.a.

Servisair, Inc., a.k.a. Swissport International, Ltd.” In its response, Austrian Airlines argues that

Dordieski’s motion should be denied because the Court has no personal jurisdiction over the

proposed defendant and, consequently, the proposed amended complaint would be futile.

Dordieski’s reply lists multiple alleged contacts the proposed defendant has with the United States

and Indiana and asserts that there is personal jurisdiction. Austrian Airlines’ surreply rebuts

Dordieski’s assertion, arguing that the contacts Dordieski lists are largely a result of Dordieski

conflating two subsidiaries of the same parent company.

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 (e.g., undue delay, bad faith, dilatory motive),

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to an

opposing party, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also

Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). In the context of a challenge to personal

jurisdiction, the standard for futility is the same standard of legal sufficiency that applies under

Federal Rule of Civil Procedure 12(b)(2). Hundt v. DirectSat USA, LLC, No. 08C7238, 2010 WL

1996590, at *2 (N.D. Ill. May 17, 2010) (citing Farmer v. DirectSat USA, LLC, No. 08-cv-3962,

2010 WL 380697, at *1 (N.D. Ill. Jan. 28, 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).

 Regarding the instant motion, there is no indication of undue delay, bad faith, dilatory

motive, past failure to cure deficiencies, or prejudice to Austrian Airlines. The only argument in

opposition is that the amendment would be futile because the Court does not have personal

jurisdiction over the proposed defendant.

Personal jurisdiction is a waivable defense. Fed. R. Civ. P. 12(h)(1). Thus, while inability

to survive a 12(b)(2) motion places a proposed amended complaint inside the definition of “futile,”

the waivability of personal jurisdiction means that it is possible for a case, though technically

“futile” on personal jurisdiction grounds, to proceed to the merits on the amended complaint.

Assuming arguendo that the Court does not have personal jurisdiction over the proposed defendant,

it may be that the proposed defendant wishes to consent to exercise of personal jurisdiction by this

Court.

2
An amendment’s “futility” is sufficient reason to deny leave to file an amended complaint,

but there is no mandate making denial necessary in the event a proposed amendment meets the

“futile” definition. Further, this Court is instructed to freely grant leave to file an amended complaint

when justice so requires. This Court notes, without deciding, that Dordieski’s proposed amended

complaint may not survive a 12(b)(2) motion brought by the proposed defendant, but no such motion

is before the Court and the proposed defendant may, in fact, wish to waive the issue. The Court finds

that, in this case, justice requires allowing Dordieski to amend the complaint. After the amendment,

the proposed defendant may then decide for itself whether to challenge personal jurisdiction, instead

of the Court allowing Austrian Airlines to raise it on the proposed defendant’s behalf. Additionally,

given the disagreement regarding the proposed defendant’s position in relation to an international

parent company, the proposed defendant will be in the best position to provide the evidence needed

to resolve this issue.

Based on the foregoing, the Court hereby GRANTS Plaintiff, Mary Dordieski’s, Motion For

Leave to File First Amended Complaint [DE 23]. The Court ORDERS Plaintiff to FILE the First

Amended Complaint on or before October 30, 2015.

SO ORDERED this 27th day of October, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

3