7

filed one month after Shirley Gallagher's deposition, The court finds that this does not constitute
undue delay.

Third, Gallagher argues that by allowing Vance leave to amend her complaint, Gallagher
will be prejudiced, The court finds this argument unpersuasive. The accounting claim asserted
against Shirley Gallagher docs not raisc, as Gallagher contends, “new claims, theories and
allegations.” (Def. Resp., at 5.) Rather, it is identical to accounting claim against Gallagher sct
forth in the initial complaint. Gallagher has failed to explain how the addition of Shirley
Gallagher as a defendant to the accounting claim will require significant additional discovery.
Furthermore, the prejudice to Vance if the motion for leave to amend is denied will be far greater
than any prejudice to Gallagher if the motion is granted. It is possible that Vance would be
unable to obtain the accounting requested in Count | if Shirley Gallagher is not added, because
Shirley Gallagher is the current trustee of the Maria Henry ‘Trusts. See Godfrey v. Kamin, 99 C
3230, 1999 WL 756151, at *2 (N.D. Ill. Sept, 13, 1999) (holding that all trustees are necessary
and indispensable parties to a suit alleging breach of fiduciary duty for failure to provide trust
accountings).

Finally, Gallagher argues that granting Vance leave to file a Fourth Amended Complaint
“would only increase the already frivolous nature of this lawsuit.” (Def. Resp., at 7.) In support
of this argument, Gallagher argues only that “discovery has not produced a single piece of
evidence which in any way supports the allegations in Vance’s ‘Third Amended Complaint.” The

court will not evaluate the factual merits of Vance’s claims at this stage. The proposed

amendment is not frivolous on its face. Thus, the court will allow it.



On or about August 12, 2003, Shirley Gallagher notified Vance that she would be
assuming the role of successor trustee under the terms and conditions of the Maria Henry Trusts
Numbers 1, 2, and 3. Vance deposed Shirley Gallagher on December 18, 2003. During the
deposition, Shirley Gallagher confirmed the existence of a Power of Attorncy authorizing her to
sign Gallagher’s resignation as Trustee and her subsequent assumption of the role of Trustee to
the Maria Henry ‘Trusts. On March 3, 2004, Vance requested from Shirley Gallagher “a complete
accounting . . . of all business interests owned by [Vance] and her remaining trusts.” (PI. Ex. C.)
According to Vance, such an accounting has not been provided. Vance now seeks to add Shirley
Gallagher as a defendant on Count I of the proposed Fourth Amended Complaint, requesting an
accounting.

DISCUSSION

Gallagher asserts four grounds for opposing Vance’s motion for leave to amend her
complaint. First, Gallagher argues that Vance’s motion is premature as to Shirley Gallagher
because Vance never requested an accounting from Shirley Gallagher after Gallagher assumed
the role of trustee of the Maria Henry Trusts. However, on March 3, 2004, Vance did request
such an accounting. ‘Thus, Vance’s motion is ripe.

Second, Gallagher argues that Vance has unduly delayed seeking leave to add Shirley
Gallagher as a parly. Gallagher points out that seven months have passed since Shirley Gallagher
advised Vance that she would be assuming the duties and responsibilities of successor trustee.
However, Vance, quite reasonably, sought to confirm the validity of Gallagher’s resignation as

trustee and to determine under what authority Shirley Gallagher was acting as successor trustee.

Vance did so at Shirley Gallagher’s deposition in December of 2003. The instant motion was



BF

CONCLUSION
Because Gallagher has not shown good reason for denial of the motion, and Rule 15(a)
requires that leave to amend be freely given, Vance’s motion for leave to amend is granted.
Vance is required to file her Fourth Amended Complaint by July 16, 2004. Defendants are given

until August 3 to plead to the Fourth Amended Complaint.

ENTER:__S9etece (¥pKagtlery—
JOAN HUMPHREY YEFKOW
United States District Judge

Dated: July 7, 2004



Minute Onde For (0697)

‘ United States District Court, Northern District of Illinois

a Magistrate ude Joan H. Leflow “than Aste Dae
CASE NUMBER 02 C 8249 DATE 71/7/2004
CASE Vance vs. Gallagher
TITLE

[In the following box (a) indicute the parly filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented,

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.}

(2) oO Brief in support of motion due

Q) oO Answer briefto motion due___. Reply to answer brief due.

(4 oO Ruling/Hearing on set for at

(5) oO Status hearing{held/continued to] [sct for/re-sct for]on__ set for at

(6) Oo Pretrial conference[held/continued to] [set for/re-setfor]on set for sat _

(7) oO Trial[set for/re-set for]on___at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to_ at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 4.1 OFROP41(a)(1) O FRCP41(a)(2).

qo) [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order, plaintiff's motion for leave to file fourth amended complaint [98-1]
is granted. Plaintiff to file fourth amended complaint by 7/16/04, Defendants are given until 8/3/04 to
plead to the fourth amended complaint.

(il) of [For further detail see order attached to the original minute order.)

No notices required, advised in open court,
4

No notices required, umber of notices

UL 0 8 2004

Notitied counsct by telephone, date docketey
Dacketing to mail notices, | Y

VY | Notices mailed by judge's staff.

Mail AO 450 form. quod LopiLsia “sn docile
Copy to judge/magistrate judge. a] q
courtroam Ola Hd L- TAC HOO date mtiledpotce
MD deputy‘s.
initials a4 Fas ten er MD
Geodndtati eda
central Clerk's Office nailing deputy initials

ee wets



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MARIA HENRY VANCE, )
)
Plaintiff, )
)
v. } Case No. 02 C 8249
) Judge Joan H, Lefkow
ROBERT E. GALLAGHER, SR., )
Individually and as Trustee of the Maria )
Henry Trusts Numbers 1, 2 and 3, )
)
Defendant. ) <i
ys ay
MEMORANDUM OPINION AND ORDER  &
\w
Plaintiff, Maria Henry Vance (“Vance”), has moved pursuant to Rule 15 of Federal

Rules of Civil Procedure for leave to file a Fourth Amended Complaint adding Shirley M.
Gallagher as a defendant on Count I, requesting an accounting. For the reasons stated below, the
motion is granted.
STANDARD

Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its
complaint with leave of court, and leave to amend should be “freely given when justice so
requires.” Ted. R. Civ. P. 15(a). The court “need not allow an amendment when there is undue
delay, dilatory motive, undue prejudice to the opposing party, or when the amendment would be
futile.” Bethany Pharmacal Co. v. QVC, Ine., 241 F.3d 854, 860-61 (7 Cir. 2001), citing
Foman v. Davis, 371 U.S. 178, 182 (1962). However, delay is not a sufficient basis for denial of

leave to amend unless the delay has caused the opposing party undue prejudice. Textor v. Board

of Regents, 711 F.2d 1387, 1391 (7 Cir. 1983). “Generally, ‘the grant of leave to amend . . . is



within the discretion of the trial court.’” Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7
Cir. 1995), quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971).
BACKGROUND

On November 13, 2002, Vance filed a seven-count Complaint against Robert F.
Gallagher, Sr. (“Gallagher”), individually and as ‘Trustee of the Maria Henry Trusts Numbers 1,
2, and 3. Vance alleged that Gallagher had mishandled the trusts’ assets and engaged in self-
dealing by, among other things, investing the trusts’ assets in business entities that he controls,
Vance alleged claims for a preliminary and permanent injunction (Count I), breach of fiduciary
duty (Count IL), an accounting (Count II), breach of the trust agreements (Count IV), negligence
in the administration of the trusts (Count V), a declaratory judgment as to trust 3 (Count VI), and
a declaratory judgment as to her writlen election to liquidate the trusts (Count VIL). Vance’s
Complaint was dismissed by this court for failure to properly plead diversity jurisdiction.

On December 18, 2002, Vance filed a First Amended Complaint against Gallagher. Once
again, Vance’s First Amended Complaint was dismissed for failure to properly plead diversity
jurisdiction.

On January 28, 2003, Vance filed a Second Amended Complaint. On August 5, 2003,
Vance sought leave to file a Third Amended Complaint voluntarily dismissing three of the seven
counts in her Second Amended Complaint, namely, Count 1 (Preliminary and Permanent
Injunction), Count VL (Declaratory Judgment as to Trust No. 3), and Count VIT (Declaratory

Judgment as to Election to Liquidate), Gallagher answered the Third Amended Complaint and

filed Affirmative Defenses and a Counterclaim thereto,