UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION

GORSS MOTELS, INC., a Connecticut ) 

corporation, individually and as the ) 

representative of a class of similarly-situated ) 

persons, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) CASE NO.: 1:16-CV-330-HAB 

 ) 

BRIGADOON FITNESS INC., an Indiana ) 

corporation, BRIGADOON FINANCIAL, INC., ) 

an Indiana corporation, and John Does 1–5, ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

Once state-of-the-art, the traditional fax machine and its resulting facsimile communication 

have gone the way of the dinosaur, or so we thought. They are rebirthed in this litigation, however, 

as Plaintiff, Gorss Motels (“Gorss”) sued Defendant Brigadoon Fitness, Inc. (“Brigadoon”) for 

transmitting a single “junk fax” in 2013 in violation of the Telephone Consumer Protection Act 

(TCPA) of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. 

Presently before the Court is the Defendants’ Motion for Leave to File Amended Answer 

and Affirmative Defenses (ECF No. 132) filed on April 27, 2020. Gorss responded in opposition 

on May 11, 2020 to which Brigadoon replied on May 18, 2020. For the following reasons, the 

Defendants’ motion will be GRANTED. 

APPLICABLE STANDARD 

Federal Rule of Civil Procedure 15(a) provides that a party may amend the party's pleading 

only by leave of court or by written consent of the adverse party and that leave shall be freely given 

when justice so requires. Because pleadings merely serve to put the opposing side on notice, they 

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should be amended freely as the case develops, as long as amendments do not unfairly surprise or 

prejudice the opposing party. Rule 15(a); Jackson v. Rockford Housing Authority, 213 F.3d 389, 

390 (7th Cir. 2000). The decision to deny leave to amend a pleading is an abuse of discretion only 

if no reasonable person could agree with the decision. Winters v. FruCon, Inc., 498 F.3d 734, 741 

(7th Cir. 2007) (quoting Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004)); 

Ajayi v. Aramark Business Services, 336 F.3d 520, 530 (7th Cir. 2003). 

Leave to amend properly may be denied at the district court's discretion for “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);Gandhi v. 

Sitara Capital Management, 721 F.3d 865, 868-869 (7th Cir. 2013). 

With respect to futility, it is generally measured by whether the amendment would survive 

a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bethany Phamacal Company, 

Inc. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001); Range v. Brubaker, 2009 WL 3257627, at *3 

(N.D. Ind. 2009). If the proposed amendment is not clearly futile, denying leave to amend on this 

ground would be improper. See Wright & Miller, 6 Federal Practice & Procedure § 1487, at 637-

642 (2d ed. 1990) (“If the proposed change clearly is frivolous or advances a claim or defense that 

is legally insufficient on its face, the court may deny leave to amend.”). The court in considering 

whether the amendment is futile considers the legal sufficiency of the defense, not the merits. 

Ellmann v. Amsted Rail Co., Inc., No. 2:17-CV-361, 2018 WL 1725494, at *2 (N.D. Ind. Apr. 9, 

2018). 

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PROCEDURAL BACKGROUND 

On September 13, 2016, Gorss filed its Class Action Complaint (ECF No. 1) against 

Brigadoon. On November 8, 2016, Brigadoon filed its Answer and Affirmative Defenses to Gorss’ 

Complaint (ECF NO. 17). Thereafter, Gorss filed its Motion for Class Certification (ECF No. 57) 

and on May 21, 2019, the Court denied the motion. On November 4, 2019, this Court denied both 

Gorss’ motion to reconsider the order on class certification and its amended motion for class 

certification (ECF No. 126). On December 11, 2019, the Court lifted a previously ordered stay of 

discovery and set a discovery deadline of February 28, 2020. The parties indicated that they 

anticipated the filing of cross-motions for summary judgment and requested a single briefing 

schedule to accomplish this goal. Accordingly, the Court set a dispositive motion deadline of 

March 31, 2020. (ECF No. 127) 

 Gorss promptly filed its Motion for Summary Judgment on March 31, 2020 (ECF No. 129). 

Brigadoon did not. Instead, on April 27, 2020, Brigadoon filed the present motion for leave to 

amend its answer and affirmative defenses, followed the next day by its cross-motion for summary 

judgment and response in opposition to Gorss’ dispositive motion (ECF No. 133). Gorss moved 

to strike Brigadoon’s cross-motion (ECF No. 135)1 and filed its opposition to the motion for leave 

to amend. 

DISCUSSION 

Gorss can fairly be classified as a professional class action plaintiff, having been the named 

plaintiff in at least seventeen TCPA lawsuits throughout the United States. (DE 65-4, Gorss Dep. 

9–10).2 With such industrious pursuit of alleged violations of the TCPA, it follows that judicial 

1

 This motion was later withdrawn by agreement of the parties. (ECF No. 139.) 

2

It is “not unlawful to be a professional class action plaintiff” or even to have a “business model” 

that combines being a “professional class action representative.” CE Design Ltd. v. King Architectural 

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decisions, both for and against Gorss’ interests, would routinely develop. And so it happens here. 

Brigadoon seeks leave to amend its answer to include a collateral estoppel defense based on the 

11th Circuit decision in Gorss Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094 (11th Cir. 2019) 

(“the Safemark Decision”). That decision, rendered July 26, 2019, held that Gorss gave prior 

express permission to receive faxes from Safemark by virtue of language contained in Gorss’ 

franchise agreements with Wyndham Hotel Group. Gorss objects to this attempt to amend claiming 

that Brigadoon unduly delayed in bringing the amendment and, that even if the delay is justified, 

the amendment is futile. 

 Gorss’ first argument, that of undue delay, initially has some teeth. Brigadoon moved to 

amend, some nine months after the rendering of the Safemark Decision. Gorss submits that 

Brigadoon was well aware of the existence of the Safemark Decision as it was referenced by Gorss 

itself in August 2019 in the briefing in support of its motion to reconsider the denial of class 

certification and amended motion for class certification. Likewise, the Court specifically 

mentioned the Safemark Decision in its order denying those motions in November 2019. What 

Gorss fails to mention, however, is that the case was stayed, with the exception of briefing on those 

motions, until December 11, 2019, when the Court lifted the stay and permitted discovery to 

resume. (ECF Nos. 108, 127). So, with that adjustment, the period of delay is approximately four 

months, certainly not egregious considering “[d]elay alone is usually not a sufficient reason to 

deny a motion to amend.” Biomet Inc. v. Bonutti Skeletal Innovations LLC, No. 3:13-CV-176 JVB, 

2015 WL 13657627, at *4 (N.D. Ind. Apr. 27, 2015) (citing Soltys, 520 F.3d at 743). 

Gorss does not assert prejudice from the delay, and rightfully so. “Undue prejudice occurs 

when the amendment ‘brings entirely new and separate claims, adds new parties, or at least entails 

Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011) 

 

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more than an alternative claim or a change in the allegations of the complaint’ and when the 

additional discovery is expensive and time-consuming.” In re Ameritech Corp., 188 F.R.D. 280, 

283 (N.D. Ill. 2015) (quoting A. Cherney Disposal Co. v. Chi. & Suburban Refuse Disposal Corp., 

68 F.R.D. 383, 385 (N.D. Ill. 1975)). As noted, Gorss is the plaintiff in multiple TCPA cases, and, 

more importantly it is well-versed in the defenses raised against it in those suits so as to anticipate 

such defenses and their corresponding arguments in others. Moreso where, as here, the case cited 

as the basis for Brigadoon’s motion to amend is a case where Gorss is the plaintiff. If leave to 

amend is granted, Gorss will be prejudiced to the extent that it will need to defend against this 

affirmative defense, a task it has already proven capable of doing by its extensive opposition brief 

to the present motion. Indeed, in its 26 page opposition brief, 17 of those pages were devoted to 

arguing the merits of a summary judgment motion on the collateral estoppel defense. However, 

being required to defend against new allegations made in pleadings is not the sort of prejudice that 

is undue in the context of amending pleadings. See Biomet 3i, LLC v. Land, No. 1:16-cv-125, 2017 

WL 510945, at *4 (N.D. Ind. Feb. 8, 2017). If such prejudice were considered undue, then amended 

pleadings would rarely be permissible. Reardon v. Short-Elliott Hendrickson, Inc., No. 2:17-CV154-JVB-PRC, 2018 WL 1603381, at *2 (N.D. Ind. Apr. 3, 2018). 

 Finally, with respect to its contention related to futility, as set out above, Gorss expended 

17 of its 26 page opposition brief discussing the futility of the amendment, on the merits. However, 

“[f]utility, in the context of Rule 15, refers to the inability to state a claim, not the inability of the 

plaintiff to prevail on the merits.” Schilke v. Wachovia Mortg., FSB, 758 F. Supp. 2d 549, 554 

(N.D. Ill. 2010) (citing Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992)). Indeed, affirmative 

defenses must provide a short and plain statement of the defense and adequately put the plaintiff 

on notice of the defense. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 

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1989). Here, the proposed amendment is not clearly futile or legally insufficient. Gorss, as noted 

supra, is fully on notice of the collateral estoppel defense. While collateral estoppel may not win 

the day on summary judgment, an argument the Court is confident Gorss will emphasize in its 

summary judgment briefing, it is legally sufficient to survive presently. Therefore, as it would be 

improper to deny Brigadoon leave to amend its answer, the Court GRANTS Brigadoon’s motion. 

(ECF No. 132.) 

CONCLUSION 

Based on the foregoing, the Motion for Leave to Amend Answer and Affirmative Defenses 

(ECF No. 132) is GRANTED. The CLERK is DIRECTED to file Exhibit 1 to ECF No. 132, 

Brigadoon’s Amended Answer and Affirmative Defenses as a separate docket entry. 

SO ORDERED on May 21, 2020. 

s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT JUDGE 

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