(ND. Ill. 2003) (citing Stastny v. Southern Bell Telephone and Telegraph Co., 628 F.2d 267, 279
(4th Cir. 1980)). In other words, if a defendant’s decision making procedure is decentralized, the
circumstances of each person’s treatment (or mistreatment) are likely to be individualized. See
id. at 425-27. Furthermore, courts have held that proposed intervenors in discrimination cases
have failed to show a common question of law or fact where “they allege disparate treatment
claims that are unique to each individual complainant.” Seils v. Rochester City School District,
199 F.R.D. 506, 512 (W.D. N.Y. 2001) (“The fact that a plaintiff may attempt to introduce
evidence relating to the treatment of a proposed intervenor at trial in the instant matter does not
create ‘common issues of law or fact’ warranting intervention.”) (quoting Sidari v. Orleans
County, 174 F.R.D. 275, 286 (W.D. N.Y. 1996)).

Although the Court is not denying the motion for intervention on grounds that a common
question is lacking, the individualized nature of the proposed intervenors’ discrimination claims
is nonetheless significant. Because these claims are individualized, the considerable prejudice
that would in any event result from adding plaintiffs at this late stage in the litigation is
magnified. The new discovery that would be necessary to litigate the proposed intervenors’
claims (not to mention their impact on the prompt resolution of any trial) would be substantial,
and addition of these individuals “would make this suit unnecessarily complex, unwieldy and
prolonged”—which precedent teaches is a sufficient reason to deny permissive intervention.
Shea, 19 F.3d at 349; accord, e.g., Coburn v. Daimlerchrysler, 218 F.R.D. 607, 611 (N.D. Ill.
2003) (Castillo, J.); Seils, 199 F.R.D, at 513; Sidari, 174 F.R.D. at 286; Siegel v. Lyons, No. C-
95-3588, 1996 WL 634206, *8 (N.D. Cal. Sept. 16, 1996) (denying request to intervene by

proposed additional plaintiffs in putative class action on the basis that “granting this motion at

19


delay.”); see also Glatt v. Chicago Park District, 87 F.3d 190, 194 (7th Cir. 1996) (affirming
denial of motion to amend complaint filed 16 months after the original complaint was filed and
more than a year after the discovery of the document on which the proposed amendment was
based).

The prejudice that Defendants would suffer if the motion to amend were granted is
evident. Much of the additional discovery that would have to be conducted to address the fifteen
additional claims sought to be asserted against the seven proposed new defendants would relate
to the alleged practices of the current Defendants, since it is the alleged longstanding existence of
these practices and the proposed defendants’ alleged understanding and knowledge of them that
are placed at issue in the proposed additional claims. (At a minimum, the Plaintiff would surely
need to be redeposed too.) Given the time period at issue—at least the last seven years,
according to Plaintiff—and the substantial number of proposed new defendants that would be
involved, such additional discovery would be time-consuming and expensive. It is well-
established that such additional discovery and delay constitute undue prejudice sufficient to
require denial of a proposed amendment, particularly where, as here, the conclusion of the case is
in sight. See, e.g., Continental Bank v. Meyer, 10 F.3d 1293, 1298 (7th Cir. 1993) (“If the
amendment were allowed, the bank would have been put to additional discovery, and thus
prejudiced. We conclude that the district court did not abuse its discretion in refusing the
amendment because of undue delay.”); Perrian v. O’Grady, 958 F.2d 192, 195 (7th Cir. 1992)
(“Eleventh hour additions . . . [are] bound to produce delays that burden not only the parties to
the litigation but also the judicial system and other litigants.’”) (quoting Campbell v. Ingersoll

Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990)); Ferguson v. Roberts, 11 F.3d 696, 706-

13


and has alleged that the Pier Authority has violated “Title VII of the Civil Rights Act and 28
U.S.C. § 1331, § 1343 (a)(2)(3) and 42 U.S.C. § 2000e-5(f)(3) and over 42 U.S.C. § 1981, 1983,
1988, 1985(3), 1986 and 18 USC 241, 242.” (id. at 13, 1 65.)

With regard to the Carpenters Union, the Council of Carpenters, and Mr. Libby and Mr.
Oliver, the union officials, Plaintiff alleges that they “create a network of persons” who favor
white carpenters. (/d. {{ 68, 74.) Plaintiff further alleges that “Unions have an affirmative duty
to ensure compliance with Title VII.” (Jd. ] 67.) Plaintiff attempts to state causes of action for
“breach of duty, Breach of trust, Breach of contract and Failure to Represent,” (id. at 14), against
Mr. Libby and Mr. Oliver, attempts to state causes of action for breach of duty, breach of trust,
and breach of contract against the Carpenters Union and the Council of Carpenters, (id. at 16),
and alleges that these four proposed union defendants violated the same federal statutes allegedly
violated by the Pier Authority and also certain CFR provisions. (Jd. J 71, 77.)

As to attorney Mcgann and the law firm of Whitfield and Mcgann, Plaintiff alleges that
Mr. Mcgann, while employed by Whitfield and Mcgann, “represented the carpenters union
before Plaintiff Jones and similarly situated filed an EEOC complaint on June 6, 1996 alleging
employment discrimination by trade show contractors” and that “[through]out the litigation in
1997 to present Mr. Mcgann had and has advanced knowledge of the adverse actions in the trade
show industry but failed to uphold his ethical and fiduciary duties to the union members namely
plaintiff Jones and similarly situated black carpenters.” (Jd. J] 79, 81.) Although not entirely
clear, it appears that Plaintiff attempts to state claims against Mr. Mcgann and Whitfield and
Mcgann for the aforementioned breach of duty, breach of trust, breach of contract, and failure to

represent, and Plaintiff asserts that these proposed defendants violated the same federal statutes



this time would unnecessarily complicate and delay this litigation.”). Adding these several new
parties would geometrically expand the case and prolong the time and expense to Defendants
(who were sued over two years ago) before an answer in this case is rendered. See Fed. R. Civ.
P. 24(b) (“In exercising its discretion the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the original parties.”)’

In addition, denial of the motion to intervene is also appropriate because, as noted above,

the proposed intervenors are free to ass ights in a separate suit. See, e.g., Head v. Jellico

fe
Housing Authority, 870 F.2d 1117, 1124 (6

ol

th Cir, 1989) (“[A) charge of abuse of discretion in
the denial of a motion for permissive intervention appears to be almost untenable on its face
when an appellant has other adequate means of asserting her rights.”) (citing, inter alia, Korioth
v. City of Farmers Branch, 523 F.2d 1271, 1279 n.25 (Sth Cir. 1975)); Coburn, 218 F.R.D. at

610; Meridian Homes Corp. v. Nicholas W. Prassas & Co., 89 F.R.D. 552, 555 (N.D. Ill. 1981)

7 Plaintiff's suit was originally filed in August 2002. (D.E. 1.) Roderick Johnson first
sought to intervene in June 2003 (D.E. 47) and Mr. Johnson filed a “Notice of Filing” regarding
“amendment to the motion to Intervene” seeking to add the other seven putative intervenors in
November 2003. The Court appreciates that Mr. Johnson was told in October 2003 that his
motion to intervene would be considered after a ruling upon the then-pending summary judgment
motion of Defendant Champion against Plaintiff. (D.E. 63). Upon receipt of this case in March
2004, this Court endeavored to promptly rule upon that motion for summary judgment against
Plaintiff (it was denied in April 2004 (D.E. 72)) and, due to extensions requested by the parties
(including the putative pro se intervenor, Mr. Johnson, and the Plaintiff) briefing on the motions
to intervene and amend were not completed until July and August 2004, respectively. The Court
does not count the time that has passed since Mr. Johnson and the other putative intervenors
indicated a willingness to join against them, given the prior decision that the motions to intervene
would not be visited until after the summary judgment ruling was rendered; the Court instead
finds that, on the circumstances of this case, the addition of the claims of the eight putative
intervenors (who waited at least ten months before seeking to intervene) when offered would
have materially expanded the scope of the case and trial and unduly delayed resolution of the
pending claims at issue between the parties. Accord, e.g., Coburn v. Daimlerchrysler, 218
F.R.D. 607, 610-11 (N.D. Ill. 2003). That situation is equally true today.

20


CONCLUSION

For the foregoing reasons, Plaintiff's motion to amend is denied, the motion to intervene
is denied, the motions to proceed in forma pauperis and for appointment of counsel of Mr.
Britten and Leonardo Johnson, Jr. are denied as moot, Anita Moore’s motions to proceed in

forma pauperis and for appointment of counsel are denied, and Defendant Champion’s motion to
strike is denied as moot. As previously stated (see footnote 2, infra), the parties are directed to
please confer regarding what discovery, if any, remains to be completed in this case, and what

further pre-trial proceedings and/or motion practice, if any, remain to be completed.

UL Leo

Mark Filip
United States District Judge

Northern District of Mlinois
Enter: 7 - 3-0 Y

22


intervenors were barred from bringing a separate action by a statute of limitations (or, as to their
Title VI claims, for failure to timely file a charge), this would not constitute a sufficient
impairment of interests within the meaning of Rule 24(a) because the harm would not be due to
the disposition of this action. See United States v. City of New York, 198 F.3d 360, 366 (2d Cir.
1999) (“[A}ny failure on their part to act within the applicable statutes of limitations does not
sufficiently impair their interests to warrant intervention under Rule 24(a)(2); rather, the harm to
their interests must be attributable to the court’s disposition of the suit in which intervention is
sought.”) (citation omitted); accord, e.g., Hawaii-Pacific Venture Capital Corp. v. H.B.
Rothbard, 564 F.2d 1343, 1345 (9th Cir. 1977) (holding that impairment requirement was not
met and stating that “[t]o begin with, the appellants’ contention that their state claims seeking
payment for unpaid AH stock subscriptions are now barred by the statute of limitations alleges
harm not related to and not attributable to the disposition of the class action suit.”). At any rate,
inasmuch as resolution of this case, in which no class has been certified, will not preclude the
proposed intervenors from bringing their own suit, the proposed intervenors have not satisfied
the “mpairment” requirement of Rule 24(a). See Jn re Safeguard Scientifics, 220 F.R.D. 43, 48-
49 (E.D. Pa. 2004) (holding that impairment requirement was not met and denying motion to
intervene as of right where no class was certified and the proposed intervenors therefore
“temain[ed] free to assert their claims by filing individual civil actions against [the defendant].”);
accord, e.g., Warden, III v. Crown American Realty Trust, No. Civ.A. 96-25], 1998 WL 725946,
*4 (W.D. Pa. Oct. 15, 1998). Therefore, because the “impairment” requirement has not been
met, the Court denies the motion to intervene insofar as it seeks intervention pursuant to Rule

24(a).

17


On May 12, 2004, Roderick Johnson filed his supplemental brief in support of his motion
to intervene and Mr. Britten, Leonardo Johnson, Jr., and Ms. Moore moved to proceed in forma
pauperis and for appointment of counsel. (D.E. 74, 75, 76, 77, 78.) On June 15, 2004, Plaintiff
filed a motion to amend without filing a proposed amended complaint. (D.E. 89.) Plaintiff filed
a new motion to amend, this time with a proposed amended complaint, on July 12, 2004. (D.E.
94.) After Champion was granted a requested one-week extension to file a response to Roderick
Johnson’s motion to intervene, (D.E. 85), and Roderick Johnson was given a requested three-
week extension, (D.E. 92), briefing on the motion to intervene was completed on July 16, 2004.
Briefing on the motion to amend was completed on August 12, 2004, (D.E. 104.)

DISCUSSION

A. The Motion to Amend

“Although leave to amend shall be freely given when justice so requires, Fed.R.Civ.P.
15(a), leave is inappropriate where there is undue delay, bad faith, 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, or futility of
amendment.” Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991). While “delay alone is
an insufficient reason to deny [a] proposed amendment, there is a ‘sufficient basis for denial of
leave to amend . .. when the delay has caused the opposing party undue prejudice.” Chavez v.
Illinois State Police, 251 F.3d 612, 633 (7th Cir. 2001) (quoting Textor v. Bd. of Regents of N. Ill.
Univ., 711 F.2d 1387, 1391 (7th Cir. 1983)). “Undue prejudice occurs when the amendment
‘brings entirely new and separate claims, adds new parties, or at least entails more than an

alternative claim or a change in the allegations of the complaint’ and when the additional


grounds that it had become evident that Plaintiff and Roderick Johnson could afford to pay for
legal representation. (D.E. 102 and 112 in 97-C-7406.) Judge Manning granted the motions to
withdraw. (D.E. 111 and 113 in 97-C-7406). Eventually, after the Council of Carpenters and
Carpenters Union indicated that they would seek summary judgment on the claims of Plaintiff
and Roderick Johnson, Plaintiff and Roderick Johnson voluntarily dismissed their case in 97-C-
7406 on December 2, 2003. (D.E. 121 in 97-C-7406.)

Plaintiff filed the instant suit, on an individual basis, against Champion, Freeman, and
GES on August 30, 2002. (D.E. 1.) The case was initially assigned to Judge Lefkow. On
January 29, 2003, Plaintiff moved to amend his complaint to allege a class action, to add as
defendants the International Brotherhood of Carpenters, the Council of Carpenters and the
Carpenters Union, and to consolidate his case with another pending discrimination suit brought
by Roderick Johnson against GES, Viad, and Freeman, 02-C-7096, that was proceeding before
Judge Conlon.' (D.E. 25.) In that motion, Plaintiff asserted that he and Roderick Johnson “have
sought after assistance from the Union for [m]Jany years[.] The Union has a ethical and legal
responsibility to help any member who request [i]t” and asserted that the International
Brotherhood of Carpenters, the Council of Carpenters and the Carpenters Union violated Title
VIL, among other statutes, and that those entities had engaged in conduct amounting to, among

other things, “[flailure to represent, breach of contract, breach of duty, breach of trust. . ..” (Id.

‘On April 3, 2003, Roderick Johnson voluntarily dismissed suit 02-C-7096 without
prejudice, (D.E. 49 in 02-C-7096), after Freeman filed a motion to sanction him for his failure to
comply with discovery obligations, (D.E. 43 in 02-C-7096), and Judge Conlon vacated her
previous order granting him in forma pauperis status and granted his appointed counsel’s motion
to withdraw when information was brought to Judge Conlon’s attention that Roderick Johnson
could afford to pay for legal representation. (D.E. 24 & 35 in 02-C-7096.)

6


and regulations that the other proposed defendants allegedly violated. (Id. ] 82.)

[on Litigation History

In his reply in support of his motion to amend, Plaintiff asserts that the “Defendants
(contractors) have maintained a system of hiring . . . [that] has been in practice for decades... .
As early as 1997 to present the Carpenters Union (etc) and the [Pier Authority] has been aware of
the alleged adverse actions by the General contractors in the trade show industry and fail to
provide equal protection under the color of the law (Accessory after the fact).” (D.E. 104 at 1-2.)
Plaintiff also states that he “for years has attempted to right the wrong that has become a
common practice and purposeful ignorance by all Defendants and will continue to d[o] so until a
remedy is rendered (redress).” (Id. at 2-3.)

In this regard, Plaintiff and proposed intervenor Roderick Johnson have participated in
various lawsuits involving certain of the Defendants and proposed defendants since 1997. On
January 22, 1997, Plaintiff, Roderick Johnson, and four other African American carpenters filed
a lawsuit against GES alleging that the company discriminated and retaliated against them in
violation of Title VII and Section 1981. (D.E. 1 in 97-C-7405.) In that suit, the district court
(Plunkett, J.) granted summary judgment in favor of GES, and the Seventh Circuit affirmed. See
Thompson v. GES Exposition Services, No. 01-2055, 2002 U.S. App. LEXIS 2194, at **7-9 (7th
Cir. Feb. 6, 2002). On October 22, 1997, Plaintiff, Roderick Johnson, and four other carpenters
filed another suit against the Council of Carpenters and the Carpenters Union, alleging that these
entities “knew of G.E.S.’s discrimination [and] employment practice[s] and failed to take action .
-+.” (DE. 1 in 97-C-7406 at 2.) In that case, which proceeded before Judge Manning, the

attorneys who were appointed to represent Plaintiff and Roderick Johnson moved to withdraw on



2. Rule 24(b) (Permissive Intervention)

“Permissive intervention under Rule 24(b) is wholly discretionary... .” Sokaogon
Chippewa Community v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000); accord, e.g., Shea v.
Angulo, 19 F.3d 343, 346 n.2 (7th Cir. 1994), Rule 24(b) provides, in pertinent part, that “[u]pon
timely application anyone may be permitted to intervene in an action . .. when an applicant’s
claim or defense and the main action have a question of law or fact in common. . . In exercising
its discretion the court shall consider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.” Fed.R.Civ.P. 24(b). The proposed intervenors
bear the burden of demonstrating a common question of law or fact with the main action. See,
e.g., Security Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995) (“The
proposed intervenor must demonstrate that there is (1) a common question of law or fact... .”).

As an initial matter, the Court notes that it is questionable whether the proposed
intervenors have met their burden of showing a common question of law or fact. Plaintiff has not
alleged a discriminatory policy of general application, such as a biased testing procedure. Rather,
Plaintiff claims that the various Defendants’ foremen, who are the employees that make
personnel decisions with respect to carpenters, are “predominantly” but not exclusively,
“whites,” (D.E. 34, 1), and that the foremen “have great latitude in selecting and hiring,” (D.E.
104 at 3), and “give preference to white carpenters in hiring, training and promotion.” (D.E. 34,
412.) Courts have taught that such “a decentralized hiring procedure, which allows
decisionmakers to consider subjective factors,” may support “individual claims of discrimination
but cuts against the assertion that an employer engages in a pattern or practice of discriminatory

hiring as a standard operating procedure.” Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 424

18


claims. (/d.) That same day, Champion moved for summary judgment. (D.E. 55.) On
November 19, 2003, Roderick Johnson filed a “Notice of Filing” regarding “amendment to the
motion to Intervene” seeking to add as proposed intervenors carpenters Glen R. Britten, Katrice
Crawford, James Garrett, Leonardo Johnson, Jr., Leonardo Johnson, Sr., David L. McNeil, and
Van E. Wilkerson. (D.E. 67.) Judge Lefkow stated in an October 9, 2003 minute order that she
would be taking Roderick Johnson’s motion to intervene under advisement until “after the
Court’s decision is entered on the motion of defendant Champion Exposition Services for
summary judgment.” (D.E. 63.)

On March 3, 2004, this case was reassigned from Judge Lefkow to this Court. (D.E. 69.)
On March 25, 2004, this Court extended the fact discovery cut-off to July 1, 2004 (Judge Lefkow
originally ordered that the discovery cut-off would be April 25, 2003, (D.E. 21), and
subsequently ordered that “[a]ll discovery will close on 9/10/03.” (D.E. 42.))? This Court denied
defendant Champion’s motion for summary judgment against Plaintiff on April 15, 2004. (D.E.
72.) On April 28, 2004, this Court denied without prejudice a motion for leave to amend that
Plaintiff had filed on October 28, 2003 without attaching a proposed amended complaint. (D.E.
64.) Also on April 28, 2004, this Court granted Roderick Johnson until May 12, 2004 to file a
supplemental brief in support of his motion to intervene and set a briefing schedule for responses

and areply. (D.E. 73.)

? Since Judge Lefkow set the discovery deadline, the parties have completed some (but
perhaps not all) discovery conceming Mr. Jones’s case. This Court has indicated that the subject
of any remaining discovery will be addressed after the release of this Opinion clarifying the scope
of this case going forward. The parties are directed to please confer about what discovery, if any,
is appropriate going forward in light of this Opinion and to please be prepared to address this
matter at the initial status hearing thereafter.


‘© Minute Ocdty Form (06/97)

ee
United States District Court, Northern District of Hlinois

Name of Assigned Judge ‘li Sitting Judge if Other
or Magistrate Judge Mark Filip than Assigned Judge

C2 62KZ -~ DATE 9/3/2004

Curtis Jones vs. GES Exposition Services, Inc.,et al

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

q@ o Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due___.

@) oO Answer brief to motion due___, Reply to answer briefdue__.

(4) Q Ruling/Hearing on setfor___at

(5) oO Status hearing[held/continued to] (set for/re-set for]on___setfor__at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on____—_ssetfor__—s—s at
(e) oOo Trial{set for/re-set for}on__at

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__—__aat

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OlLocal Rule 41.1 COFRCP41(a\(1) OFRCP41(a\(2).

et) | (Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: Plaintiffs motion to amend
[93-1] is denied, the motion to intervene (47-1] is denied, the motions to proceed in forma pauperis [75-1 & 77-1]
and for appointment of counsel [76-1 & 78-1] of Mr. Britten and Leonardo Johnson, Jr. are denied as moot. Anita
Moore’s motions to proceed in forma pauperis and for appointment of counsel [107-1 & 108-1] are denied, and
Defendant Champion’s motion to strike [105-1] is denied as moot. As previously stated (see footnote 2, infra), the
parties are directed to please confer regarding what discovery, if any, remains to be completed in this case, and
what further pre-trial proceedings and/or motion practice, if any, remain to be completed.

al) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. “=. Document.
No notices required. umber of notices : Number:
Notices mailed by judge's staff. SEP 07 2004
Notified counsel by telephone. date docketod
ov | Docketing to mail notices.
_ 10450 fom ; J uo i ay Sear ‘initials
py to judge/magistrate judge. hy ut Sig )
rox couioom 44 hy e. di date mailed notice
initials Dadtdey = fon2
central Chik Lbihed El ailing depaty ints



In this regard, Plaintiff even specified that he “for years has attempted to right the wrong
that has become a common practice and purposeful ignorance by all Defendants. ...” (D.E. 104
at 2-3.)? Indeed, Plaintiff, along with five other carpenters, filed a separate suit against the
Council of Carpenters and Carpenters Union on October 22, 1997, alleging that these entities
“knew of G.E.S.’s discrimination [and] employment practice[s] and failed to take action... .”
(DE, 1 in 97-C-7406 at 2.) Furthermore, as noted above, on January 29, 2003, Plaintiff actually
filed—but later withdrew—a motion in this case to add the Council of Carpenters and Carpenters
Union as defendants, (D.E. 25 at 2-3; D.E. 35), and in that motion, Plaintiff stated that he “and
Mr. Johnson was told in mid December of 2002 by Terrance Mcgann Union Representative
(legal coun[sel]) that he and [F]rank Libby (President of Local #10 and assistant to President of
District Council) would help rectify our situation” but that Mr. Mcgann and Mr. Libby have
provided no help despite Plaintiff's “attempts for them to do [s]o.” (id. at 1-2.) In sum, despite
having knowledge of the grounds for claims against the proposed new defendants for years,
Plaintiff did not include those claims in either his original complaint in this case, which was filed

almost two years before he filed the proposed Second Amended Complaint, or his now-operative

3 In the proposed Second Amended Complaint, Plaintiff also makes clear that he has
been complaining about hiring practices by general contractors at McCormick Place since 1996
(e.g., D.E. 94, J] 17, 24) and that the union defendants and the Pier Authority did not adequately
respond, in his view, to his complaints. (/d. § 17 (explaining that Plaintiff and other colleagues
were “given permission to picket on some events but the MPEA [Metropolitan Pier and
Exposition Authority] never took any action is Affirming there rights. But for taking NO action
with plaintiff Jones and others similarly situated to remedy the issues, they not only allowed but
encouraged this adverse action to continue.”)); id. | 24 (making substantially identical allegations
concerning the proposed union defendants). In other filings, Plaintiff also makes clear that he
believes the proposed defendants are part of the alleged campaign of “purposeful ignorance” that
Plaintiff has been aware of and allegedly aggrieved by for years. See, e.g., D.E. 104 at 4
(discussing the union entities and officers and Pier Authority).

11



discovery is expensive and time-consuming.” Jn re Ameritech Corp. v. Computer Systems
Solutions, Inc., 188 F.R.D. 280, 283 (N.D. Ill. 1999) (quoting 4. Cherney Disposal Co. v.
Chicago & Suburban Refuse Disposal Corp., 68 F.R.D. 383, 385 (N.D. Ill. 1975)). Precedent
states that it is “within a district court’s discretion to deny an amendment to the pleadings for
delay and prejudice to the opposing party.” Fort Howard Paper Co. v. Standard Havens, Inc.,
901 F.2d 1373, 1379 (7th Cir. 1990); accord, ¢.g,, Hindo v. University Services/The Chicago
Medical School, 65 F.3d 608, 615 (7th Cir. 1995) (collecting cases).

Plaintiff's proposed amendment must be denied because of Plaintiff's undue delay and
the prejudice to Defendants that would result if the amendment were allowed. It is clear from
Plaintiff's filings that he has known of the grounds for claims against the new proposed
defendants for years. As set forth above, Plaintiff claims that the allegedly discriminatory system
of hiring used by the Defendants (the contractors) “has been in practice for decades,” (D.E. 104
at 1), and that “[a]s early as 1997 to present the Carpenters Union (etc) and the [Pier Authority]
has been aware of the alleged adverse actions by the General contractors in the trade show
industry and fail to provide equal protection under the color of the law (Accessory after the
fact).” (Id. at 1-2.) Plaintiff also asserts that Mr. Mcgann, of Whitfield and Mcgann,
“represented the carpenters union before Plaintiff Jones and similarly situated filed an EEOC
complaint on June 6, 1996 alleging employment discrimination by trade show contractors” and
that “[through]out the litigation in 1997 to present Mr. Mcgann had and has advanced knowledge
of the adverse actions in the trade show industry but failed to uphold his ethical and fiduciary
duties to the union members namely plaintiff Jones and similarly situated black carpenters.”

CE. 34, $1 79, 81.)

10


at 2-3.) Plaintiff also stated in that motion that he “and Mr. Johnson was told in mid December
of 2002 by Terrance Mcgann Union Representative (legal coun[sel]) that he and [F]rank Libby
(President of Local #10 and assistant to President of District Council) would help rectify our
situation” but that Mr. Mcgann and Mr. Libby have provided no help despite Plaintiff's “attempts
for them to do [s]o.” (/d.) On February 11, 2003, Judge Lefkow denied without prejudice
Plaintiff's motion to amend his complaint to allege a class action, took the motion to add
defendants and to consolidate under advisement, and appointed attorney Thomas Howard
Geoghegan to represent Plaintiff. (D.E. 27.)

On March 10, 2003, Judge Lefkow granted Plaintiff's oral motion to amend his
complaint. (D.E. 31.) Plaintiff filed his First Amended Complaint on April 21, 2003. While
Plaintiff asserted class allegations in his First Amended Complaint, he did not add any parties.
(@.E. 34.) On May 1, 2003, Plaintiff withdrew his motion to add defendants and Judge Lefkow
denied his motion to consolidate as moot. (D.E. 35.) Later in May 2003, Defendants Champion,
Freeman, and GES filed motions to dismiss. (D.E. 38, 39.)

On June 10, 2003, Judge Lefkow ordered that “[a]ny amendments to the pleadings and/or
joinder of additional parties may be sought upon appropriate motion by 7/10/03.” (D.E. 42.) On
June 20, 2003, Roderick Johnson filed a motion to intervene. (D.E. 47.) On June 23, 2003,
Plaintiff's appointed attommey, Thomas Howard Geoghegan, moved to withdraw as Plaintiff's
counsel, citing “substantial disagreement on litigation strategy.” (D.E. 46 at 1.) Judge Lefkow
granted Mr. Geoghegan’s motion on June 26, 2003. (D.E. 48.)

On July 31, 2003, Judge Lefkow granted in part and denied in part Defendants’ motions

to dismiss. (D.E. 54.) Judge Lefkow dismissed the class allegations with respect to the Title VI



(Shadur, J.) (“Intervenors’ state court action will permit a full adjudication of their rights. There
is no need further to complicate or delay this action by the injection of new parties and an
entirely new set of claims.”). Furthermore, while the primary purpose for intervention expressed
by the proposed intervenors is to use the single filing rule to assert a Title VII class action based
on Plaintiff's EEOC charge, (D.E. 47 at 2; D.E. 67 at 2), as explained above, the proposed
intervenors have also indicated that they still could file their own charges given their assertions
that Defendants’ alleged actions are continuing violations that are still occurring. (D.E. 95 at 1-
2.) Moreover, in any event, Plaintiff's EEOC charge could not serve as the basis of a Title VII
class suit because Judge Lefkow already dismissed the Title VII class allegations from Plaintiff's
complaint. (D.E. 54.) Thus, because intervention would result in substantial prejudice to
Defendants while at the same time denial of intervention will not materially harm the proposed
intervenors, the motion to intervene is denied.

Cc. The Remaining Motions

Because the Court has denied the motion to intervene, the motions of proposed
intervenors Mr. Britten and Leonardo Johnson, Jr. to proceed in forma pauperis and for
appointment of counsel and Defendant Champion’s motion to strike are all moot and are denied
as such. The motions of Ms. Moore to proceed in forma pauperis and for appointment of
counsel are denied because the governing statute authorizes the Court to grant in forma pauperis
status and appoint counsel only to persons who commence, prosecute, or defend a suit, action or
proceeding, see 28 U.S.C. § 1915(a) & (d), and Ms. Moore has not alleged or otherwise indicated
that she has or is seeking to commence, prosecute, or defend any suit, action, or proceeding

before this Court.

21


amend, Plaintiff asserts that “the hiring process [of the Defendant contractors] is open to abuse
because foreman have great latitude in selecting and hiring.” (D.E. 104 at 3.) As noted above,
Plaintiff has alleged that Defendants failed to hire and/or promote him because of his race and
that Defendants have retaliated against him for complaining of the discrimination. (D.E. 34, 4 1.)

B. The Proposed Additional Defendants and Claims

With respect to the proposed defendants, the Carpenters Union is the local branch of the
International Brotherhood of Carpenters, the union to which Plaintiff and, presumably, the
proposed intervenors, belong. (D.E. 34,9 10.) According to Plaintiff's proposed Second
Amended Complaint (also, “the proposed complaint”), the Council of Carpenters is “a district
office of the International Brotherhood of Carpenters,” (D.E. 94, ¥ 19), and Frank Libby and Earl
Oliver are “union business agents.” (Jd. { 68.) The Pier Authority is described in the proposed
amended complaint as “a body politic and Municipal Corporation of the State of Ilinois. . . . Its
corporate purpose is to promote, operate and maintain fairs, expositions, meetings and
conventions ....” (/d. 415.) Proposed defendant Terrance Mcgann has “represented the
carpenters union . . . .[and] was employed under [the law firm of proposed defendant] Whitfield
& Gergorio....” (Id. $4 79-80.)

In the proposed complaint, Plaintiff alleges that “While defendant [Pier] Authority knows
or should know of the racially discriminatory hiring and firing practices of the defendants who
set up and operate on the Authority’s property, with the defendant Authority’s permission, the
defendants Authority has refused to take any action to require defendant employers not to engage
in such discrimination.” (/d. at [ 64.) Plaintiff has attempted to state claims against the Pier

Authority for “breach of duty[,] Breach of trust, Breach of contract[,] and Failure to Represent,”


07 (7th Cir. 1993) (affirming denial of motion to amend where proposed complaint contained
new claims “which would undoubtedly require additional discovery” and there was a “fast-
approaching trial date.”); Johnson v. Methodist Medical Center of Mlinois, 10 F.3d 1300, 1304
(7th Cir. 1993) (“{I]t seems likely that Methodist, as it contends, would have to engage in
substantial additional discovery and thus be prejudiced if plaintiff's proposed amended complaint
were accepted.”); Foodcomm Int'l v. Barry, No. 02-7268, 2003 WL 23144860, *3 (N.D. Ill. Dec.
22, 2003) (denying motion to amend complaint where plaintiff sought to add six defendants
approximately four months before discovery was scheduled to close).

Moreover, denial of leave to amend is “particularly warranted” in this case because
Plaintiff has offered no explanation for his delay. Hindo v. University of Health Sciences/The
Chicago Medical School, 65 F.3d 608, 615 (7th Cir. 1995) (“A denial is particularly warranted in
instances in which the plaintiff has failed to provide an explanation as to why the amendment did
not take place sooner, and where the delay in granting the motion to amend would cause delay
and burden the parties.”); accord, e.g., Miles, III v. S.C. Johnson & Son, Inc., No. 00-3278, 2002
WL 1303131, *3 (N.D. Ill. June 12, 2002) (collecting cases); Lippert Marketing, Ltd. v.

Kingwood Ceramics, Inc., No. 95-6490, 1997 WL 527282, *3 (N.D. Ill. Aug. 19, 1997).> Hence,

5 Defendants also contend that leave to amend the extant complaint should be denied on
futility grounds, because, Defendants contend, many or all of the proposed claims fail as a matter
of law. At least some of the proposed charges do clearly fail as a matter of law. For example,
the proposed Second Amended Complaint purports to advance charges under 18 U.S.C. §§ 241
& 242, but it is well settled that those are criminal statutes which cannot be prosecuted by private
citizens, as opposed to federal prosecutors acting on behalf of the United States of America. See,
e.g., United States v. Wadena, 152 F.3d 831, 846 (8th Cir. 1998) (“Courts repeatedly have held
that there is no private right of action under § 241, even though the statute allows federal
authorities to pursue criminal charges.”); Cok v. Costentino, 876 F.2d 1, 2 (1st Cir. 1989) (“Only
the United States as prosecutor can bring a complaint under 18 U.S.C. §§ 241-242... These

14


“Impairment exists when the decision of a legal question . . . would, as a practical matter,
foreclose the rights of the proposed intervenor in a subsequent proceeding.” Shea v. Angulo, 19
F.3d 343, 347 (7th Cir. 1994) (internal quotation omitted); accord, e.g., American Nat'l Bank
and Trust Co. of Chicago v. The City of Chicago, 865 F.2d 144, 147-48 (7th Cir. 1989);
Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir, 1982). Thus,
where the disposition of a suit will not bar a proposed intervenor from asserting his or her rights
in a separate action, the “impairment” prong of 24(a) typically is not met. See Shea, 19 F.3d at
347 (“[W]hether or not Shea recovers from FCA, Butzen remains free to initiate his own suit
against Shea to recover his share of the alleged partnership earnings. The district court correctly
held, therefore, that~even if he could prove the allegations contained in the materials submitted
to that court—there is no potential impairment of Butzen’s interest as a result of the disposition of
the Shea-FCA action.”).

Because no class has been certified in the present case, disposition of the suit will not bar
(or even meaningfully preclude) the proposed intervenors from pursuing their own rights in their
own separate action(s). Indeed, the proposed intervenors do not even contend that they would be
unable to bring a separate suit but instead emphasize that they have viable claims, particularly
since no statute of limitations has run and the Defendants, in any event, “all have continuing

violations [which] . . . . are still occurring to this day.”* (D.E. 95 at 1-2.) Moreover, even if the

§ While the motions to intervene may be construed to suggest that not all of the proposed
intervenors have filed charges with the EEOC, generally a prerequisite to filing suit under Title
VH, the proposed intervenors have also, as stated above, indicated that they believe they still
could file charges given that Defendants’ alleged actions are continuing violations that are still
occurring.

16


and Earl Oliver, the Metropolitan Exposition and Pier Authority (the “Pier Authority”), and
attorney Terrance B. Mcgann and the law firm Whitfield & Mcgann, who have variously
represented union entities. In addition, eight carpenters (“proposed intervenors”) have moved to
intervene as plaintiffs in this suit. Two of the proposed intervenors, Mr. Britten and Leonardo
Johnson, Jr., have moved to proceed in forma pauperis and for appointment of counsel. Another
individual (apparently a carpenter) named Anita Moore, who is not a party to this suit and has not
moved to intervene, also has moved to proceed in forma pauperis and for appointment of
counsel, Finally, Defendant Champion has moved to strike the reply brief of one of the proposed
intervenors, Mr. Roderick Johnson, filed in support of his motion to intervene. For the reasons
stated below, Plaintiff's motion to amend is denied, the motion to intervene is denied, the
motions to proceed in forma pauperis and for appointment of counsel of Mr. Britten and
Leonardo Johnson, Jr. are denied as moot, Anita Moore’s motions to proceed in forma pauperis
and for appointment of counsel are denied, and Defendant Champion’s motion to strike is denied
as moot.
RELEVANT FACTS

A. The Current Defendants and Claims

Defendants Champion, Freeman, and GES (Viad is the parent company of GES) are
general contractors that provide set-up and tear-down services to trade associations and other
organizations that sponsor trade shows or expositions at sites in Chicago such as McCormick
Place and Navy Pier. (D.E. 101 at 2; D.E. 34, ff 11-12.) To perform work such as laying and
removing carpet and setting up and breaking down exhibit booths, Defendants hire carpenters on

a day-to-day basis. (D.E. 101 at 2; D.E. 34, 4 10-11.) In his reply in support of his motion to


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION Where ey DOCKETED wee
SEP 0 7 2004

CURTIS JONES, )
)

Plaintiff, ) Case No. 02 C 6243
)

v. ) Judge Mark Filip

)
GES EXPOSITION SERVICES, INC., )
VIAD CORP., FREEMAN DECORATING )
COMPANY, and CHAMPION EXPOSITION _i+)
SERVICES, INC., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Curtis Jones, an African American carpenter, alleges in his First
Amended Complaint, which was filed on April 21, 2003, that Defendants GES Exposition
Services, Inc. (“GES”), Viad Corp. (“Viad”), Freeman Decorating Company (“Freeman”), and
Champion Exposition Services, Inc. (“Champion”) (collectively “Defendants”), have violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 20006, et seq. (“Title VI’)
and 42 U.S.C. § 1981 (“Section 1981”), by failing to hire and/or promote him and a similarly
situated class of African American carpenters and by retaliating against him for complaining of
discrimination. Plaintiff since moved (well after the deadline that Judge Lefkow set in 2003 for
adding parties (D.E. 42)) to amend his complaint to add fifteen claims against seven new
defendants. The proposed new defendanta (collectively “proposed defendants”) include
Carpenters Union Local #10 (the “Carpenters Union”), the Chicago and Northeast Illinois

Council of Carpenters (the “Council of Carpenters”), Carpenters Union executives Frank Libby

(7


First Amended Complaint, which was filed more than fourteen months before he filed the
proposed Second Amended Complaint.

Instead, Plaintiff waited until after the scheduled close of fact discovery and more than a
year after the deadline Judge Lefkow set for “amendments to the pleadings and/or joinder of
additional parties” to file the proposed amended complaint. (D.E. 42.)* Plaintiff offers no
reasons to justify this delay. These circumstances lead the Court to find that Plaintiff has unduly
delayed filing the proposed amended complaint. See, e.g., Park v. City of Chicago, 297 F.3d
606, 613 (7th Cir. 2002) (affirming denial of motion to amend and holding that, where the
plaintiff “knew or should have known of the City’s possible violation,” her “six-month wait
constituted undue delay.”); Perrian v. O’Grady, 958 F.2d 192, 195 (7th Cir. 1992) (affirming
denial of motion to amend on grounds that “even if O’Grady’s admittedly tardy written
interrogatories first brought to Perrian’s attention the need to depose the medical personnel,
Perrian has not explained why he waited from July 14 to September 21, the end of the lengthened
discovery period, to ask to depose the medical personnel, and then until November 1 to add them
as defendants.”); Ernst y. Anderson, No. 02-4884, 2004 WL 1497794, *2 (N.D. Ill. July 1, 2004)
(“{D]elaying confirmation of the alleged defamation for several months and waiting for more

than two months after confirmation to move to file an amended complaint constitutes undue

4 The pending proposed amended complaint was filed on July 12, 2004 (D.E. 94)—or
approximately one year after the deadline of July 10, 2003, that Judge Lefkow set back on June
10, 2003. (D.E. 42.) Previously, on June 15, 2004 (D.E. 89), and October 28, 2003 (D.E.
64)—some eleven and three and one-half months, respectively, after the deadline set by Judge
Lefkow—Plaintiff filed motions to file an amended complaint but did not attach any proposed
amended complaint to either motion. Both of these motions were dismissed without prejudice
because no proposed complaint was attached to them (D.E. 73; D.E. 90)—preventing the parties
and Court from assessing whether an amended complaint was appropriate.

12



for all of the above reasons, Plaintiff's motion to amend is denied.

B. The Motion to Intervene

Because Roderick Johnson's motion to intervene does not clearly specify whether he is
seeking to intervene only under Federal Rule of Civil Procedure 24(a) (intervention as of right)
or whether he is also moving under Rule 24(b) (permissive intervention), the Court will err in his
favor and assume that he is attempting to proceed under both rules. The Court concludes that
intervention is not appropriate in the instant circumstances under either rule.

1. Rule 24(a) (Intervention as of Right)

Where, as here, there is no statute giving an absolute Tight to intervene, “[t]here are four
Tequirements for intervention of right under [F]ed.R.Civ.P. 24(a) . . . (1) timeliness, (2) an
interest relating to the subject matter of the main action, (3) at least potential impairment of that
interest if the action is resolved without the intervenor, and (4) lack of adequate representation by
existing parties.” Reid L. v, Illinois State Board of Education, 289 F.3d 1009, 1017 (7th Cir.
2002). As explained by the Seventh Circuit, “[t}he burden is on the party seeking to intervene of
right to show that all four criteria are met. If not, then the district court must deny intervention of
right.” Jd. (internal citations omitted). This Court denies intervention of right because the

proposed intervenors have not met the “impairment” requirement.

Statutes do not give rise to a civil action for damages.”); Lovelace v. Whitney, 684 F. Supp. 1438,
1441 (N.D. Ill. 1988) (Aspen, J.) (holding that “18 U.S.C. § 242... is a criminal statute which
provides no private cause of action”) (collecting cases); Pawelek v. Paramount Studios Corp.,
571 F. Supp. 1082, 1083 (N.D. Ill. 1983) (Shadur, J.) (holding that “it is well settled no private
right of action inheres in those criminal provisions [18 U.S.C. §§ 241-242]”). Given the other
reasons that warrant denial of the motion to amend the complaint, the Court need not and does
not pass on whether all of the proposed charges are barred as a matter of law.

15