In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1666 

NEWSPIN SPORTS, LLC, an Illinois limited liability company, 

Plaintiff-Appellant, 

v.

ARROW ELECTRONICS, INC., a New York corporation, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 17-cv-00345 — Samuel Der-Yeghiayan, Judge. 

____________________ 

ARGUED NOVEMBER 8, 2018 — DECIDED DECEMBER 3, 2018 

____________________ 

Before FLAUM, MANION, and ST. EVE, Circuit Judges. 

FLAUM, Circuit Judge. On January 17, 2017, plaintiff-appellant NewSpin Sports, LLC (“NewSpin”) filed a complaint 

against defendant-appellee Arrow Electronics, Inc. (“Arrow”). In this complaint, NewSpin brought several contractand tort-based claims against Arrow relating to allegedly defective goods Arrow manufactured and shipped pursuant to 

a contract between the parties. The district court dismissed 

the original complaint in its entirety as untimely and entered 
2 No. 18-1666 

judgment against NewSpin on the same day. The district 

court also denied NewSpin’s motion for reconsideration and 

for leave to file an amended complaint. For the reasons below, 

we affirm in part and reverse in part the district court’s dismissal of NewSpin’s complaint. We also reverse the district 

court’s denial of NewSpin’s request to amend its complaint in 

its reconsideration motion, and we remand for further proceedings. 

I. Background 

A. Factual Background 

We take the following facts from NewSpin’s complaint. 

Plaintiff-appellant NewSpin provides technology products to 

help athletes, like golfers and tennis players, analyze and improve their swings. In 2010, NewSpin began the process of 

producing and launching its flagship “SwingSmart” product. 

SwingSmart is a sensor module that attaches to sports equipment and analyzes the user’s swing technique, speed, and angle. To initiate the production process, NewSpin searched for 

manufacturers and distributors that could provide the necessary electronic components to make SwingSmart work. 

Defendant-appellee Arrow deals in the type of electronic 

components NewSpin sought to include in SwingSmart. Arrow sales representatives met with NewSpin representatives 

at least seven times in 2010 and 2011; the parties discussed 

NewSpin’s requirements for the product and Arrow’s ability 

to meet these requirements. Based on these discussions, 

NewSpin believed that Arrow knew how SwingSmart would 

function and understood NewSpin’s specifications for 

SwingSmart. Arrow employees further represented to 

NewSpin that Arrow had “successfully manufactured and 
No. 18-1666 3

provided substantially similar components for other customers.” 

Based on these representations, NewSpin signed a contract with Arrow in August 2011 entitled “Materials and Manufacturing Management Agreement Board Assembly” (the 

“Agreement”). Arrow agreed to “use reasonable commercial 

efforts” to perform “Work” pursuant to NewSpin purchase 

orders. Arrow’s work as defined in the Agreement was: 

[T]o procure components and other supplies 

(Components) and to engage a sub-assembly 

house for the manufacture and assembly of 

Products (or Boards) through a subcontractor ... on [NewSpin’s] behalf pursuant to detailed, written specifications ... which are provided by [NewSpin] and accepted by Arrow, 

and to deliver such products to a [NewSpin] 

designated location. 

The Agreement left many of the specifics of each product 

shipment for NewSpin’s future purchase orders: “As 

[NewSpin] requirements dictate, and on a case by case basis, 

[NewSpin] will issue a purchase order to Arrow setting forth 

the quantities, descriptions, prices, and requested delivery 

dates for the Products to be supplied and Work to be performed.... Each purchase order will reference the applicable 

Specifications.” The price for Arrow’s work was also left to be 

“agreed upon by Arrow and [NewSpin] from time to time as 

set forth in purchase orders issued by [NewSpin] and accepted by Arrow.” However, the Agreement did contain provisions that addressed, among other issues: Arrow’s warranty 

for the products shipped to NewSpin; Arrow’s inspection of 

products; sales tax and shipment terms; and NewSpin’s 
4 No. 18-1666 

ability to return shipped products. The Agreement further 

provided it would “in all respects be governed by and construed in accordance with the laws of the State of New York.” 

In late 2011, NewSpin sent its first purchase orders to Arrow for fulfillment, and Arrow shipped some components to 

NewSpin in mid-2012. NewSpin alleges, however, that the 

components Arrow sent were defective and did not conform 

to their specifications. A manufacturing expert later identified 

“pad cratering” as one reason for these defects. NewSpin alleges pad cratering is a common manufacturing issue that Arrow should have known about. 

Initially unaware of these defects, NewSpin used Arrow’s 

defective components to build 7,500 SwingSmart units. Of 

those 7,500 units, only 3,219 could be shipped to customers 

and, of the 3,219 shipped units, 697 were wholly inoperable. 

In sum, of the 7,500 SwingSmart units NewSpin initially built, 

4,281 units were inoperable or defective. NewSpin alleges it 

paid Arrow a total of $598,488 for these defective and nonconforming components, and it also incurred over $200,000 in 

other damages in the form of customer support efforts, module testing, and repair. Furthermore, its receipt of these defective components damaged its brand equity, reputation, and 

vendor relationships. Additionally, Arrow never delivered 

over $130,000 worth of components to NewSpin, despite billing NewSpin for them. 

B. Procedural History 

NewSpin filed a complaint against Arrow on January 17, 

2017, bringing claims for breach of contract (Count I); breach 

of the implied covenant of good faith and fair dealing (Count 

II); breach of warranty (Count III); fraud (Count IV); 
No. 18-1666 5

fraudulent misrepresentation (Count V); unjust enrichment 

(Count VI); and negligent misrepresentation (Count VII). 

Arrow moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing all of these 

claims were time-barred. The district court agreed and 

granted the motion to dismiss in its entirety on July 26, 2017. 

Specifically, the court determined the Agreement was predominantly a contract for the sale of goods subject to the fouryear statute of limitations for such contracts set out in Article 

2 of the Uniform Commercial Code (“UCC”). It made this determination based on NewSpin’s complaint; per the court, 

“NewSpin’s breach of contract allegations make clear that the 

essence of the contract was for the components and the components’ specific parts.” The district court also noted the “title” of the Agreement found in the lower left-hand corner of 

each page, “New Spin Golf LLC Turnkey Agreement 08-10-

2011F (2),” reflected that the contract fell within Article 2 of 

the UCC because it demonstrated Arrow’s obligation to deliver “turnkey” goods. See Turnkey, Black’s Law Dictionary 

(10th ed. 2014) (term refers to a product “provided in a state 

of readiness for immediate use”). 

Because the court determined NewSpin filed its complaint 

more than four years after the alleged breach—the delivery of 

allegedly defective goods in mid-2012—it concluded the contract-based claims were untimely. And, since it determined 

the tort-based claims were predicated on the same allegations 

underlying the contract-based claims, the court also dismissed those claims as time-barred. The court entered judgment in Arrow’s favor on the same day it issued its decision. 

NewSpin timely moved for reconsideration pursuant to 

Rule 59(e). It argued the district court erred in its decision in 
6 No. 18-1666 

several ways, including by not granting leave to amend the 

original complaint before disposing of the case. NewSpin attached a proposed amended complaint to its reconsideration 

motion that, it contended, overcame the pleading defects the 

district court had identified. 

The district court denied NewSpin’s reconsideration motion in a two-page order on January 29, 2018. The court rejected NewSpin’s claims of error in its judgment; it did not 

address NewSpin’s amended complaint except to state that 

NewSpin had improperly sought “to amend the complaint after the dismissal of the instant action.” NewSpin appeals the 

district court’s orders granting the motion to dismiss and 

denying the motion for reconsideration.1

II. Discussion 

We review a district court’s grant of a Rule 12(b)(6) motion 

to dismiss de novo. Forgue v. City of Chicago, 873 F.3d 962, 966 

(7th Cir. 2017). We accept all well-pleaded facts in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 

2016). In order to survive a motion to dismiss, the plaintiff 

must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the 

 

1 On March 20, 2018, nearly one month after NewSpin’s deadline to 

file a notice of appeal passed, NewSpin filed a motion for extension of time 

to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A). 

Judge Dow, to whom the case was transferred following Judge DerYeghiayan’s February 2018 retirement, granted the motion. NewSpin 

thereafter filed a timely notice of appeal on March 26, 2018. 
No. 18-1666 7

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For 

fraud claims, a heightened pleading standard applies; a plaintiff “must state with particularity the circumstances constituting fraud or mistake.” Webb v. Frawley, 906 F.3d 569, 576 (7th 

Cir. 2018) (quoting Fed. R. Civ. P. 9(b)). A plaintiff is not required to plead elements in his or her complaint that overcome affirmative defenses, such as statute-of-limitations defenses. Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 

935 (7th Cir. 2012). However, “when a plaintiff’s complaint 

nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Id. We 

review a district court’s denial of a Rule 59(e) motion for reconsideration and denial of a motion for leave to amend for 

abuse of discretion. Manistee Apartments, LLC v. City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016). 

A. Dismissal of Contract-Based Claims (Counts I–III) 

The district court dismissed as time-barred NewSpin’s 

claims for breach of contract, breach of the implied covenant 

of good faith and fair dealing, and breach of warranty. Specifically, the district court determined the Agreement is a contract for the sale of goods subject to the UCC’s four-year statute of limitations, and NewSpin’s claims based on a mid-2012 

contractual breach were untimely by NewSpin’s January 2017 

filing. NewSpin argues this is error; it says the Agreement is 

a contract for services subject to a longer limitations period. 

We agree the Agreement is primarily a contract for the sale of 

goods, and therefore, because the contract-based claims in the 

complaint only allege a mid-2012 breach, the district court 

properly dismissed Counts I–III as time-barred. 
8 No. 18-1666 

1. Choice of Law 

Before turning to the substantive issues, we must determine the correct state law to apply. Because we sit in diversity, we apply the choice-of-law rules used by the state in 

which the federal district court where the case was filed sits—

here, Illinois. Midwest Grain Prods. of Ill., Inc. v. Productization, 

Inc., 228 F.3d 784, 787 (7th Cir. 2000). Illinois courts usually 

enforce contractual choice-of-law provisions. See id. (citing 

Philips Elecs., N.V. v. N.H. Ins. Co., 692 N.E.2d 1268, 1278 (Ill. 

App. Ct. 1998)). In this case, the Agreement states it will be 

governed by New York law. We accordingly apply New York 

law to the substance of NewSpin’s contract-based claims. 

However, as to procedural matters, the law of the forum 

controls, and in Illinois, “[s]tatutes of limitations are procedural, merely fixing the time in which the remedy for a wrong 

may be sought, and do not alter substantive rights.” Belleville 

Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177, 

194 (Ill. 2002). Thus, the applicable statute of limitations for 

each of NewSpin’s claims comes from Illinois law, regardless 

of the relevant substantive law. See Heiman v. Bimbo Foods Bakeries Distrib. Co., 902 F.3d 715, 719 (7th Cir. 2018); Trs. of Operative Plasterers’ & Cement Masons’ Local Union Officers & Emps. 

Pension Fund v. Journeymen Plasterers’ Protective & Benevolent 

Soc’y, Local Union No. 5, 794 F.2d 1217, 1221 n.8 (7th Cir. 1986) 

(“[A] choice of law provision ... is irrelevant when considering which statute of limitation is to be used by the district 

court.”). 

This principle applies to the instant question—whether 

the Agreement is primarily a contract for the sale of goods 

subject to the UCC. As we recently held, “[t]he question 

whether a[n] ... agreement is a ‘contract for sale’ is not one of 
No. 18-1666 9

contract interpretation, but one of statutory interpretation.... 

And Illinois applies its own law in making that determination, even in the face of an express choice-of-law provision 

adopting the substantive law of a different state.” Heiman, 902 

F.3d at 719. If it becomes necessary to substantively interpret 

the Agreement to answer this question, New York law would 

apply as per the contract’s choice-of-law provision; otherwise, 

Illinois law controls whether the UCC statute of limitations 

governs the contract-based claims. See id. 

The district court applied New York law to this question 

based solely on the Agreement’s choice-of-law provision. The 

parties do not challenge this on appeal. Nonetheless, we will 

follow Illinois’s procedures and apply Illinois law. 

2. The Relevant Statute of Limitations 

There is a ten-year statute of limitations for a breach of 

written contract claim in Illinois. 735 Ill. Comp. Stat. 5/13-206. 

An exception exists, however, for a breach of contract claim 

covered by UCC Article 2, which has been adopted in Illinois 

and applies “to transactions in goods.” 810 Ill. Comp. Stat. 

5/2-102. Any action for breach of a contract for the sale of 

goods must instead “be commenced within 4 years after the 

cause of action has accrued.” Id. 5/2-725(1). “A cause of action 

accrues when the breach occurs, regardless of the aggrieved 

party’s lack of knowledge of the breach.” Id. 5/2-725(2). 

When faced with a mixed contract, involving both the sale 

of goods and the provision of services, Illinois uses the “predominant purpose” test to determine whether the four-year 

or ten-year statute of limitations applies. Belleville Toyota, 770 

N.E.2d at 194. To apply this test, courts assess whether the 

contract “is predominately for goods with services being 
10 No. 18-1666 

incidental, [or] predominately for services with goods being 

incidental.” Zielinski v. Miller, 660 N.E.2d 1289, 1294 (Ill. App. 

Ct. 1995). In the former case, the UCC limitations period applies; in the latter case, the written contract limitations period 

controls. Belleville Toyota, 770 N.E.2d at 195. Courts review a 

contract’s language and the proportion of goods to services 

provided for within the contract to assess its predominant 

purpose. Brandt v. Bos. Sci. Corp., 792 N.E.2d 296, 303 (Ill. 

2003); Bruel & Kjaer v. Village of Bensenville, 969 N.E.2d 445, 

450–51 (Ill. App. Ct. 2012). Courts may also consider a complaint’s allegations to make this determination. Republic Steel 

Corp. v. Pa. Eng’g Corp., 785 F.2d 174, 179 (7th Cir. 1986). 

We agree with the district court’s conclusion based on 

both the four corners of the contract and NewSpin’s allegations in its complaint. First, the Agreement’s provisions 

demonstrate the predominant purpose of the contract is for 

Arrow to sell goods to NewSpin. To be sure, at the core of the 

parties’ Agreement is the “Work” Arrow agreed to perform. 

This work involved certain services on Arrow’s part. Arrow 

agreed to “procure components” and “engage a sub-assembly 

house for the manufacture and assembly of Products (or 

Boards) through a subcontractor” according to NewSpin’s 

specifications. The provision of services as well as the sale of 

goods is to be expected in a mixed contract, though, and that 

does not answer the question of which purpose is the “primary” or “predominant” one. See id. at 181 (“We do not doubt 

that the design, engineering, and purchase-agency services 

rendered by [defendant] in furtherance of the Agreement 

were substantial. That alone, though, is not sufficient to determine the predominant character of a contract....”). 
No. 18-1666 11

Looking further at the definition of Arrow’s work, the end 

result expects that Arrow will “deliver ... Products to a 

[NewSpin] designated location.” In other words, NewSpin 

would provide specifications to Arrow, Arrow would engage 

a subcontractor to assemble a product based on these specifications, and Arrow would deliver the finished product to 

NewSpin. The Agreement sets out a purchase-order process 

by which NewSpin, as its requirements dictate, “will issue a 

purchase order to Arrow setting forth the quantities, descriptions, prices, and requested delivery dates for the Products to 

be supplied and Work to be performed.” 

According to NewSpin’s reading of these provisions, Arrow would create a prototype of the component it needed using the provided specifications and, if satisfied with Arrow’s 

work, NewSpin would issue purchase orders for the component Arrow created. The Agreement clarifies, though, that Arrow was not obligated to perform any work until NewSpin 

issued a purchase order for the components it sought. In other 

words, any “procur[ing],” “engag[ing],” or “assembl[ing]” 

services by Arrow would only be incidental to its provision 

and delivery of a finished good to NewSpin. 

Numerous other Agreement provisions confirm that the 

parties contracted primarily for a sale of goods. For instance, 

there is no separate payment from NewSpin to Arrow for its 

work: instead, the price would be “as agreed upon by Arrow 

and [NewSpin] from time to time as set forth in purchase orders issued by [NewSpin] and accepted by Arrow.” In other 

words, NewSpin would pay for the finished products requested in purchase orders and would not pay separately for 

Arrow’s services; this lack of a price breakdown strongly indicates the predominant purpose of the Agreement is the sale 
12 No. 18-1666 

of goods. See Bruel & Kjaer, 969 N.E.2d at 451 (payment of one 

price after delivery and installation of equipment, rather than 

multiple payments based on services, indicated contract’s 

predominant purpose was for the sale of goods). 

Arrow also provided a warranty in the Agreement that the 

products it would deliver “are manufactured or assembled 

pursuant to [NewSpin’s] Specifications” and they “shall be 

free from defects in workmanship.” There is no warranty running to the services Arrow would provide, further indicating 

the Agreement primarily concerns goods. See Tivoli Enters., 

Inc. v. Brunswick Bowling & Billiards Corp., 646 N.E.2d 943, 948 

(Ill. App. Ct. 1995). Additionally, the Agreement makes 

NewSpin responsible for payment of sales tax, which “is 

found in the sale of goods, but not services.” Id. Next, Arrow 

would ship products to NewSpin “F.O.B.,” which means 

“‘free on board,’ a term used in transactions in tangible 

goods.” Bruel & Kjaer, 969 N.E.2d at 451. Finally, title of delivered goods passes to NewSpin upon shipment, and “the passing of title” is another hallmark of sales contracts. Id.; see also 

810 Ill. Comp. Stat. 5/2-106(1) (“A ‘sale’ consists in the passing 

of title from the seller to the buyer for a price....”). 

The allegations in NewSpin’s complaint further confirm 

this interpretation.2 NewSpin alleges “Arrow agreed to provide fully functioning components that met NewSpin[’s] ... 

specifications, and agreed to provide fully functioning 

 

2 To assess whether the district court properly granted Arrow’s Rule 

12(b)(6) motion, we look only to the allegations in NewSpin’s original 

complaint, not the allegations in its proposed amended complaint submitted post-judgment. Cf. Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 

632, 638 n.1 (7th Cir. 2004) (an original complaint and an amended complaint are two separate documents). 
No. 18-1666 13

components in conformance with the Agreement.” NewSpin 

also alleges “Arrow agreed to engage a sub-assembly house 

for the manufacture and assembly of components.” However, 

NewSpin does not claim Arrow breached the Agreement by 

failing to make this engagement or by engaging a substandard assembly house for this purpose. Instead, NewSpin alleges “the components sent by Arrow were defective and not 

in conformance with the specifications [NewSpin] had provided to Arrow, the representations Arrow had made, or the 

Agreement,” and Arrow breached the Agreement “by providing [NewSpin] with defective components which failed to 

perform.” NewSpin sought damages for the amount it paid to 

Arrow for defective components, the amount it was billed for 

components it did not receive, and the amount it incurred in 

shipping and replacing defective units. In other words, 

NewSpin only claims it suffered damages relating to faulty 

goods, not to any faulty services. This further confirms the 

predominant purpose of the Agreement is to provide 

NewSpin with physical goods rather than with assembly services. See Republic Steel Corp., 785 F.2d at 179 (plaintiff’s argument that contract was not for a sale of goods “ignores the 

language of ... its complaint”). 

NewSpin nevertheless points to three characteristics of the 

Agreement it contends demonstrate the parties bargained for 

services only: (1) the Agreement states no quantity, price, or 

delivery date of goods to be produced, ordered, or sold; 

(2) the Agreement’s title demonstrates the parties contracted 

for management services; and (3) there were no “goods” in 

existence when the parties signed the Agreement as required 

for the UCC to apply. However, none of NewSpin’s arguments can overcome the plain language of the Agreement itself. 
14 No. 18-1666 

First, although the Agreement does not set out exact quantities, prices, or delivery dates for the goods at issue, the 

Agreement does address these terms. Per the Agreement, 

NewSpin’s purchase orders must “set[] forth the quantities, 

descriptions, prices, and requested delivery dates for the 

Products to be supplied and Work to be performed.” There is 

no need to include this provision in a pure services contract. 

NewSpin emphasizes the Agreement contains an integration clause providing that “[t]his Agreement represents the 

entire agreement between the parties concerning the subject 

matter hereof, and may not be modified except in a writing 

signed by both parties.” Therefore, according to NewSpin, 

any terms in later purchase orders (that both parties did not 

sign) are separate contracts. However, a closer reading of the 

integration clause demonstrates the purchase orders are part 

of the Agreement. This provision goes on to state: “When interpreting this Agreement precedence will be given to the respective parts in the following order: (i) this Agreement; 

(ii) any exhibits to this Agreement; and (iii) if purchase orders 

are used to release Products, those portions of the purchase order 

that are not pre-printed.” (emphasis added). Thus, the integration clause does not preclude introduction of evidence in the 

purchase orders themselves to supplement the Agreement’s 

interpretation. Cf. Dujardin v. Liberty Media Corp., 359 F. Supp. 

2d 337, 356 (S.D.N.Y. 2005) (“It is generally understood that 

the purpose of an integration clause ‘is to require full application of the parol evidence rule in order to bar the introduction 

of extrinsic evidence to vary or contradict the terms of the 

writing.’” (quoting Primex Int’l Corp. v. Wal-Mart Stores, 679 

N.E.2d 624, 627 (N.Y. 1997))). The Agreement therefore does 

include specific price, quantity, and delivery terms through 

the explicitly-integrated purchase orders. 
No. 18-1666 15

Second, NewSpin points out the Agreement’s title (“Materials and Manufacturing Management Agreement Board Assembly”) refers to manufacturing “management” but does 

not reference any “sale” of products. True, courts look to the 

labels parties use in order to determine contracts’ predominant purposes. Cf. Bruel & Kjaer, 969 N.E. 2d at 451 (contract 

was for sale of goods where it referred to parties as “buyer” 

and “seller”). However, the Agreement’s title is only one aspect of its terms; this is not enough to overcome the overwhelming focus of the rest of the contract on the completed 

products Arrow was to deliver to NewSpin.3

Finally, NewSpin’s argument that no “goods” existed at 

the time of the Agreement is also of little consequence. The 

term “goods” in the UCC refers to “all things, including specially manufactured goods, which are movable at the time of 

identification to the contract for sale.” 810 Ill. Comp. Stat. 5/2-

105(1). “Goods must be both existing and identified before 

any interest in them can pass. Goods which are not both existing and identified are ‘future’ goods. A purported present 

sale of future goods or of any interest therein operates as a 

contract to sell.” Id. 5/2-105(2). In the absence of agreement 

otherwise, identification of goods occurs, in the context of a 

contract for the sale of future goods, “when goods are 

shipped, marked or otherwise designated by the seller as 

goods to which the contract refers.” Id. 5/2-501(1)(b); see also 

Servbest Foods, Inc. v. Emessee Indus., Inc., 403 N.E.2d 1, 7 (Ill. 

App. Ct. 1980) (“Identification is that process by which goods 

 3 Unlike the district court, we put little dispositive weight on the footer 

located in the bottom left-hand corner of each page of the Agreement designating this as a “turnkey” contract. The word “turnkey” does not appear 

anywhere else in the Agreement. 
16 No. 18-1666 

are linked, set aside, or otherwise designated as those to 

which a contract refers.”). Although no products existed at 

the time the parties signed the Agreement, the components 

did exist when Arrow shipped them to NewSpin. The Agreement contains no provision for identification, so the electronic 

components became “identified” when shipped. At that time, 

the products subject to the Agreement were “movable” goods 

subject to the UCC. 

In sum, the contractual provisions the parties agreed to, 

along with the allegations in NewSpin’s complaint, demonstrate the Agreement’s predominant purpose is the sale of 

goods to NewSpin. Any breach-of-contract claims relating to 

the Agreement are accordingly subject to the UCC’s four-year 

statute of limitations. We now assess the timeliness of 

NewSpin’s contract-based claims using this limitations period.4 

3. Breach of Contract Claim (Count I) 

In Count I, NewSpin alleges Arrow breached the Agreement by providing it with “defective and deficient components.” To state a claim for breach of contract under New York 

law, NewSpin must allege “(1) a contract; (2) performance of 

the contract by one party; (3) breach by the other party; and 

(4) damages.” Terwilliger v. Terwilliger, 206 F.3d 240, 246 (2d 

 4 We note this result would be the same if we applied New York law 

as the district court did. New York has also adopted the UCC, including 

its four-year statute of limitations for breach-of-contract actions involving 

the sale of goods, see N.Y. U.C.C. Law § 2-725(1), and New York also uses 

the predominant purpose test to determine whether a mixed contract is 

predominantly one for goods or for services. See Triangle Underwriters, Inc. 

v. Honeywell, Inc., 604 F.2d 737, 742 (2d Cir. 1979). 
No. 18-1666 17

Cir. 2000) (quoting First Inv’rs Corp. v. Liberty Mut. Ins. Co., 152 

F.3d 162, 168 (2d Cir. 1998)). 

NewSpin alleges it sent its first purchase orders to Arrow 

in late 2011, and Arrow shipped defective components “in 

mid-2012.” Although the complaint only alleges Arrow made 

“some” shipments at that time, there is no mention of any 

other shipments. Thus, NewSpin only alleges Arrow 

breached the Agreement, if at all, in mid-2012. However, 

NewSpin did not file the complaint until January 17, 2017. No 

matter what month is considered “mid” 2012, NewSpin did 

not file its claims until after the four-year window provided 

for in the statute of limitations. NewSpin makes no argument 

that this alleged mid-2012 breach would be timely using a 

four-year limitations period. Therefore, NewSpin’s breach-ofcontract claim is untimely, and the district court properly dismissed it. 

4. Breach of the Implied Covenant of Good Faith and Fair 

Dealing Claim (Count II) 

In Count II, NewSpin alleges Arrow “breached the covenant of good faith and fair dealing by choosing to use improper, unfit or substandard components and failing to advise [NewSpin] that Arrow’s components did not meet the 

specifications and business requirements provided by” 

NewSpin. 

New York “recognize[s] that in appropriate circumstances 

an obligation of good faith and fair dealing on the part of a 

party to a contract may be implied and, if implied will be enforced.” Sheth v. N.Y. Life Ins. Co., 709 N.Y.S.2d 74, 75 (App. 

Div. 2000) (citation omitted). “The implied covenant of good 

faith and fair dealing is breached when a party acts in a 
18 No. 18-1666 

manner that would deprive the other party of the right to receive the benefits of their agreement.” 1357 Tarrytown Road 

Auto, LLC v. Granite Props., LLC, 37 N.Y.S.3d 341, 343 (App. 

Div. 2016). But a claim for breach of this covenant “is intrinsically tied to the damages allegedly resulting from a breach of 

the contract” and “may not be used as a substitute for a nonviable claim of breach of contract.” Smile Train, Inc. v. Ferris 

Consulting Corp., 986 N.Y.S.2d 473, 475 (App. Div. 2014) (citations omitted). In other words, the implied covenant claim is 

a contract claim and is subject to the same four-year statute of 

limitations. See id. (noting it would be “anomalous” if a contract claim and an implied covenant claim were subject to different limitations periods). Therefore, the district court also 

properly dismissed Count II as time-barred. 

5. Breach of Warranty Claim (Count III) 

In Count III, NewSpin alleges Arrow breached the Agreement’s express warranty “by providing defective and deficient components that failed to conform with NewSpin[’s] 

specifications.” “A successful claim of a breach of express 

warranty requires proof that an express warranty existed, was 

breached, and that plaintiff had relied on that warranty.” Reed 

v. Pfizer, Inc., 839 F. Supp. 2d 571, 578 (E.D.N.Y. 2012) (applying New York law). 

Under Illinois law, a breach of warranty claim accrues 

“when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods 

and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or 

should have been discovered.” 810 Ill. Comp. Stat. 5/2-725(2). 

However, warranties to repair, replace, or adjust defects in 
No. 18-1666 19

products are not warranties as to future performance. See Cosman v. Ford Motor Co., 674 N.E.2d 61, 66 (Ill. App. Ct. 1996). 

According to the Agreement, Arrow “warrants for a period of ninety (90) days from date of shipment” to NewSpin 

that the products it ships “are manufactured or assembled 

pursuant to” NewSpin’s specifications and “shall be free from 

defects in workmanship.” If a product does not comply with 

this warranty, the Agreement further provides NewSpin 

could return it to Arrow and the product would be “promptly 

repaired or replaced, or the purchase price paid therefor refunded or credited, at Arrow’s option.” 

The Agreement thus limits NewSpin’s potential remedies 

to repair or replacement, unless Arrow decides to refund the 

purchase price, and NewSpin does not argue the Agreement’s 

warranty extends to future performance. The breach-of-warranty claim therefore accrued when “tender of delivery” took 

place, or when “the seller put and [held] conforming goods at 

the buyer’s disposition and [gave] the buyer any notification 

reasonably necessary to enable him to take delivery.” 810 Ill. 

Comp. Stat. 5/2-503(1). This happened upon Arrow’s shipment of goods in mid-2012, more than four years prior to 

NewSpin’s complaint. Thus, this claim is also time-barred. 

B. Dismissal of Tort-Based Claims (Counts IV–VII) 

The district court dismissed NewSpin’s unjust enrichment, negligent misrepresentation, fraud, and fraudulent 

misrepresentation claims as untimely. Specifically, the court 

determined these claims were all duplicative of the breach-ofcontract claims and therefore also time-barred. NewSpin contends this decision is erroneous because its tort claims are separately actionable and subject to longer limitations periods 
20 No. 18-1666 

than the contract-based claims. We affirm the district court’s 

dismissal of NewSpin’s unjust enrichment and negligent misrepresentation claims in Counts VI and VII. However, we conclude NewSpin sufficiently alleged a separately-actionable 

fraud in Counts IV and V, and we reverse the district court’s 

decision dismissing these claims. 

1. Choice of Law 

The district court correctly applied New York law to the 

substance of NewSpin’s tort-based claims. We again look to 

Illinois to determine the applicable state law. See Midwest 

Grain Prods. of Ill., 228 F.3d at 787. Although the Agreement 

contains a New York choice-of-law provision, NewSpin’s 

tort-based claims do not obviously fall under that provision’s 

purview. Still, in Illinois, “tort claims that are dependent upon 

the contract are subject to a contract’s choice-of-law clause regardless of the breadth of the clause.” Medline Indus. Inc. v. 

Maersk Med. Ltd., 230 F. Supp. 2d 857, 862 (N.D. Ill. 2002). In 

determining whether a tort claim is contract-dependent, 

“courts examine whether the action alleges a wrong based 

upon interpretation and construction of the contract, or 

whether the claim alleges elements constituting an independent tort.” Id.; see also Kuehn v. Childrens Hosp., L.A., 119 F.3d 

1296, 1302 (7th Cir. 1997) (“[A] [contractual choice-of-law] 

provision will not be construed to govern tort as well as contract disputes unless it is clear that this is what the parties intended.”). Here, the tort-based claims depend on the contract—all of NewSpin’s allegations involve the parties’ relationship as governed by the Agreement. Therefore, New York 

law applies to the substance of the claims, although again, Illinois law controls the applicable statute of limitations. 
No. 18-1666 21

2. Unjust Enrichment Claim (Count VI) 

In Count VI, NewSpin claims “it would be unfair and 

would unjustly enrich Arrow to retain [NewSpin’s] money 

despite delivering defective components to NewSpin.” The 

district court concluded this claim was untimely as “essentially duplicative” of NewSpin’s breach-of-contract claim. We 

agree, and NewSpin cannot separately maintain an unjust enrichment claim under New York law. 

“[U]njust enrichment ... is available only in unusual situations when, though the defendant has not breached a contract or committed a recognized tort, circumstances create an 

equitable obligation running from the defendant to the plaintiff.” Corsello v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 

2012). Generally, in New York, “[a]n unjust enrichment claim 

is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Id. “[A] claim for unjust enrichment is not duplicative of a breach of contract claim where 

the plaintiff alleges that the contracts were induced by fraud.” 

Pramer S.C.A. v. Abaplus Int’l Corp., 907 N.Y.S.2d 154, 161 

(App. Div. 2010). But when the unjust enrichment claim only 

seeks to replicate a contract or tort claim, it must be dismissed. 

See Walter H. Poppe Gen. Contracting, Inc. v. Town of Ramapo, 

721 N.Y.S.2d 248, 249 (App. Div. 2001) (unjust enrichment 

claim properly dismissed where “the damages sought are 

merely for breach of contract”). 

NewSpin argues the district court should not have dismissed the unjust enrichment claim because it alleges the contract was induced by fraud. However, in the complaint, 

NewSpin alleges Arrow received $598,488 from NewSpin that 

it should not be allowed to retain “despite delivering defective components to NewSpin.” This is the same amount 
22 No. 18-1666 

NewSpin alleges it paid to Arrow for the allegedly defective 

components. NewSpin essentially restates its breach-of-contract claim in its entirety by alleging it paid money to Arrow 

but only received defective components in return. Whether or 

not this claim is considered timely, this alleged conduct forms 

the essence of the parties’ agreement and cannot separately 

support an unjust enrichment claim under New York law. See 

Corsello, 967 N.E.2d at 1185. 

Moreover, NewSpin’s unjust enrichment claim cannot 

survive based on Rule 8(d)(3)’s allowance of inconsistentlypled claims. See Fed. R. Civ. P. 8(d)(3) (“A party may state as 

many separate claims or defenses as it has, regardless of consistency.”). Count VI does not plead unjust enrichment in the 

alternative; it incorporates the other paragraphs of the complaint alleging the existence of a contract covering this claim, 

foreclosing NewSpin’s ability to pursue recovery based on 

this theory as pled. See Axiom Inv. Advisors, LLC v. Deutsche 

Bank AG, 234 F. Supp. 3d 526, 538 (S.D.N.Y. 2017) (where 

plaintiff had not challenged validity or enforceability of governing contract, “the unjust enrichment claim [was] duplicative”). 

Therefore, the district court properly dismissed 

NewSpin’s unjust enrichment claim in Count VI. 

3. Negligent Misrepresentation Claim (Count VII) 

In Count VII, NewSpin brings a claim for negligent misrepresentation. NewSpin alleges Arrow “made misrepresentations of material fact and failed to disclose material facts 

without reasonable care with knowledge that such misrepresentations ... would be relied upon by [NewSpin] in its business transaction with Arrow.” The district court dismissed 
No. 18-1666 23

this claim based on both the four-year limitations period and 

the economic loss rule. 

In New York, “[a] claim for negligent misrepresentation 

requires the plaintiff to demonstrate (1) the existence of a special privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the 

information was incorrect; and (3) reasonable reliance on the 

information.” Mandarin Trading Ltd. v. Wildenstein, 944 N.E.2d 

1104, 1109 (N.Y. 2011) (alteration in original) (quoting J.A.O. 

Acquisition Corp. v. Stavitsky, 863 N.E.2d 585, 587 (N.Y. 2007)). 

We need not decide if this claim duplicates NewSpin’s 

contract claims because we agree the economic loss rule bars 

recovery. Under New York law, “inasmuch as the damages 

established by [a plaintiff] are properly characterized as ‘economic loss’ they are not recoverable in an action for tort based 

upon negligent misrepresentation.” Gen. Elec. Co. v. A.C. 

Towne Corp., 534 N.Y.S.2d 283, 285 (App. Div. 1988); see also 

Travelers Cas. & Sur. Co. v. Dormitory Auth.-State of N.Y., 734 F. 

Supp. 2d 368, 378 (S.D.N.Y. 2010) (“New York’s economic loss 

doctrine is a jurisprudential principle that a plaintiff cannot 

recover in tort for purely economic losses caused by the defendant’s negligence.”). 

In its negligent misrepresentation claim, NewSpin only alleges Arrow made misrepresentations regarding Arrow’s 

component parts and their conformity to NewSpin’s specifications. These misrepresentations solely relate to the subject 

matter of the Agreement, pursuant to which Arrow was to 

provide NewSpin with specific components. The only damages attributable to these misrepresentations are the same 

damages NewSpin would recover for its breach-of-contract 

claim: the amount it lost because of Arrow’s defective 
24 No. 18-1666 

delivery. NewSpin cannot recover for these purely economic 

losses. See Manhattan Motorcars, Inc. v. Automobili Lamborghini, 

S.p.A., 244 F.R.D. 204, 220 (S.D.N.Y. 2007) (“While [plaintiff] 

has properly pled all of the elements required to state a cause 

of action for negligent misrepresentation, it has pled purely 

economic damages as a result of its reliance, thereby inviting 

application of New York’s ‘economic loss rule.’”); cf. Ocean 

Gate Homeowners Assoc., Inc. v. T.W. Finnerty Prop. Mgmt., Inc., 

83 N.Y.S.3d 494, 497 (App. Div. 2018) (“[W]here [a] plaintiff is 

essentially seeking enforcement of the bargain, the action 

should proceed under a contract theory.” (alterations in original) (quoting Sommer v. Fed. Signal Corp., 593 N.E.2d 1365, 

1369 (N.Y. 1992))). 

The district court thus properly dismissed NewSpin’s negligent misrepresentation claim in Count VII. 

4. Fraud Claims (Counts IV–V) 

In Counts IV and V, NewSpin brings claims for fraud and 

fraudulent misrepresentation respectively. The district court 

dismissed both claims as duplicative of the contract claims 

and thus also time-barred. NewSpin contends this was in error because its fraud claims allege Arrow owed it a duty distinct from the duty to perform under the Agreement. We 

agree and reverse the district court’s dismissal of these claims. 

To state a claim for fraud or fraudulent inducement under 

New York law, a plaintiff must allege that “(1) the defendant 

made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff 

suffered damage as a result of such reliance.” Eternity Glob. 

Master Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168, 
No. 18-1666 25

186–87 (2d Cir. 2004) (quoting Banque Arabe et Internationale 

D’Investissement v. Md. Nat’l Bank, 57 F.3d 146, 153 (2d Cir. 

1995)); Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 

98 F.3d 13, 19 (2d Cir. 1996). 

The general rule in New York is that “a fraud cause of action ... does not arise where the alleged fraud merely relates 

to a breach of contract.” EED Holdings v. Palmer Johnson Acquisition Corp., 387 F. Supp. 2d 265, 278 (S.D.N.Y. 2004). However, 

“it is well established that a misrepresentation of present fact 

which is the inducement for a contract is collateral to said contract, and can support a separate fraud claim.” Id. at 279; see 

also Gosmile, Inc. v. Levine, 915 N.Y.S.2d 521, 524 (App. Div. 

2010) (“[A] misrepresentation of present facts, unlike a misrepresentation of future intent to perform under the contract, 

is collateral to the contract, even though it may have induced 

the plaintiff to sign it, and therefore involves a separate 

breach of duty.”). But “[a] fraud-based cause of action is duplicative of a breach of contract claim ‘when the only fraud 

alleged is that the defendant was not sincere when it promised to perform under the contract.’” Mañas v. VMS Assocs., 

LLC, 863 N.Y.S.2d 4, 7 (App. Div. 2008) (quoting First Bank of 

the Ams. v. Motor Car Funding, Inc., 690 N.Y.S.2d 17, 21 (App. 

Div. 1999)). 

Thus, to maintain a fraud claim separate from a breach-ofcontract claim, “a plaintiff must either: (i) demonstrate a legal 

duty separate from the duty to perform under the contract; or 

(ii) demonstrate a fraudulent misrepresentation collateral or 

extraneous to the contract; or (iii) seek special damages that 

are caused by the misrepresentation and unrecoverable as 

contract damages.” Bridgestone/Firestone, 98 F.3d at 20 (citations omitted). 
26 No. 18-1666 

In both Counts IV and V, NewSpin alleges that in their 

meetings prior to signing the Agreement, Arrow misrepresented “that Arrow’s components met [NewSpin’s] specifications.” NewSpin further alleges Arrow “misrepresented that 

Arrow had the skillset to provide, and had provided, substantially similar components to other Arrow customers” and 

“made misrepresentations of material facts ... regarding Arrow’s components, including without limitation its switches, 

batteries, computer processors, ball grid arrays and solder 

balls.” 

NewSpin sufficiently alleges Arrow breached “a legal 

duty separate from the duty to perform under the contract,” 

Bridgestone/Firestone, 98 F.3d at 20, because it misrepresented 

present facts collateral to the Agreement. Arrow’s alleged 

misrepresentations cover its own experience in this field and 

its past dealings with other customers besides NewSpin; Arrow’s performance under the Agreement does not cover such 

promises. See Coolite Corp. v. Am. Cyanamid Co., 384 N.Y.S.2d 

808, 810 (App. Div. 1976) (defendant’s representations “concerning the state of its research and testing” were “representations of fact and not merely promises of future action” that 

induced plaintiff to enter into agreement, and “[a]llegations 

of this character are sufficient to sustain a fraud claim”). 

Moreover, Arrow’s alleged misrepresentations regarding the 

status of its own components—like its switches and batteries—relate to the presently-existing facts of the suitability of 

the raw materials Arrow would use in its manufacturing process. See First Bank of Ams., 690 N.Y.S.2d at 21 (reinstating 

fraud claim where it was “premised on allegations that defendants misrepresented various pertinent facts about” the 

products plaintiff purchased, and concluding “[t]his cannot 

be characterized merely as an insincere promise of future 
No. 18-1666 27

performance”). Taking NewSpin’s allegations as true, as we 

must at this stage, NewSpin has alleged Arrow materially 

misrepresented the currently-existing state of its own experience and materials, Arrow knew these misrepresentations 

were untrue, Arrow made these statements to induce 

NewSpin to enter into the Agreement, and NewSpin relied 

upon these misrepresentations in doing so. These allegations 

are sufficient to maintain NewSpin’s fraud claims independent of its contract-based claims.5

Because the fraud claims are not duplicative of the contract-based claims, they are not subject to the UCC’s four-year 

limitations period. The statute of limitations for fraud claims 

in Illinois is five years. See CitiMortgage, Inc. v. Parille, 49 

N.E.3d 869, 884 (Ill. App. Ct. 2016) (citing 735 Ill. Comp. Stat. 

5/13-205). It “begins to run when the claimant discovers or 

should have discovered that he has been injured by a wrongful act.” In re Collazo, 817 F.3d 1047, 1050 (7th Cir. 2016) (citing 

Knox Coll. v. Celotex Corp., 430 N.E.2d 976, 979–80 (Ill. 1981)). 

The exact date on which NewSpin could have discovered Arrow’s alleged fraud is unclear from the face of the complaint, 

but it could not have happened before the first shipment in 

mid-2012. Thus, NewSpin’s filing of its fraud claims in January 2017 fell within that five-year limitations period. 

 5 Arrow argues that NewSpin additionally cannot maintain its fraudbased claims because they are not pled with the requisite particularity under Rule 9(b). However, the district court never addressed this issue, and 

it has not been fully briefed on appeal. Given the likelihood of an amended 

pleading on remand, the district court can address whether the fraud 

claims as pled in the ultimately operative complaint meet this heightened 

pleading standard. 
28 No. 18-1666 

Because the district court erred in dismissing NewSpin’s 

fraud claims in Counts IV and V on timeliness grounds, we 

reverse the district court’s decision in that respect. 

C. Denial of Motion to Reconsider and to Amend 

We also agree with NewSpin that the district court abused 

its discretion in refusing it any opportunity to amend the original complaint. 

“Ordinarily ... a plaintiff whose original complaint has 

been dismissed under Rule 12(b)(6) should be given at least 

one opportunity to try to amend her complaint before the entire action is dismissed.” Runnion ex rel. Runnion v. Girl Scouts 

of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015). 

When a plaintiff requests such leave to amend, district courts 

should “freely give leave when justice so requires.” Fed. R. 

Civ. P. 15(a)(2). “The Supreme Court has interpreted this rule 

to require a district court to allow amendment unless there is 

a good reason—futility, undue delay, undue prejudice, or bad 

faith—for denying leave to amend.” Life Plans, Inc. v. Sec. Life 

of Denver Ins. Co., 800 F.3d 343, 357–58 (7th Cir. 2015). 

Once a district court enters final judgment dismissing a 

case, though, “the plaintiff cannot amend under Rule 15(a) 

unless the judgment is modified, either by the district court 

under Rule 59(e) or 60(b), or on appeal.” Runnion, 786 F.3d at 

521. These remedies are considered “extraordinary,” but we 

still review post-judgment motions for leave to amend according to Rule 15 in situations, like this one, where a district 

court enters judgment at the same time it first dismisses a 

case. Runnion, 786 F.3d at 521; Gonzalez-Koeneke v. West, 791 

F.3d 801, 808 (7th Cir. 2015). And we have found abuses of 

discretion in circumstances where district courts dismiss an 
No. 18-1666 29

original complaint with prejudice, without addressing a proposed amended complaint. See, e.g., Runnion, 786 F.3d at 518 

(district courts face a “high risk” of abusing their discretion 

when plaintiffs are denied any opportunity to amend); Bausch 

v. Stryker Corp., 630 F.3d 546, 561–62 (7th Cir. 2010); Foster v. 

DeLuca, 545 F.3d 582, 584–85 (7th Cir. 2008). 

Here, the district court entered judgment against 

NewSpin at the same time it dismissed NewSpin’s original 

complaint. NewSpin then timely filed a Rule 59(e) motion that 

included a request for leave to amend and properly attached 

a proposed first amended complaint to its motion. Cf. Hecker 

v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009) (no abuse of 

discretion to deny a post-judgment motion to amend where 

plaintiff did not proffer an amended complaint). The proposed amended complaint includes more allegations regarding the services Arrow provided under the Agreement and 

provides more detail regarding the alleged misrepresentations Arrow made about its expertise. The amendments also 

clarified that Arrow continued to deliver allegedly defective 

components to NewSpin into 2013, and NewSpin attached a 

March 2013 purchase order as an exhibit. 

In denying the Rule 59(e) motion, the district court did not 

address these proposed amendments or otherwise provide 

any reason for why it would not allow NewSpin the opportunity to amend. The court only stated NewSpin “improperly 

[sought] to ... seek to amend the complaint after the dismissal 

of the instant action.” Since the district court did not examine 

the merits of the proffered amended complaint before it decided the Rule 59(e) motion, the district court abused its discretion. See Paganis v. Blonstein, 3 F.3d 1067, 1073 n.7 (7th Cir. 
30 No. 18-1666 

1993). Accordingly, we reverse and remand to the district 

court for further proceedings on this issue.6

III. Conclusion 

For the foregoing reasons, we AFFIRM in part and REVERSE 

in part the district court’s dismissal of the complaint, we

REVERSE the district court’s denial of NewSpin’s request to 

amend its complaint in its reconsideration motion, and we

REMAND to the district court for further proceedings. 

 6 A district court does not abuse its discretion in denying leave to 

amend where the amendment would be futile, see Abu-Shawish v. United 

States, 898 F.3d 726, 738 (7th Cir. 2018), but NewSpin’s proposed amended 

complaint is not futile. NewSpin’s original complaint states valid fraud 

and fraudulent misrepresentation claims against Arrow based on Arrow’s 

alleged precontractual misrepresentations, and the proposed amended 

complaint realleges these claims. Moreover, while NewSpin’s new allegations cannot change the Agreement’s primary purpose and the resultant 

four-year limitations period for contract-based claims, the amended complaint alleges further defective deliveries in 2013 that could be timely if 

they relate back to the original 2017 complaint. See Fed. R. Civ. P. 

15(c)(1)(B) (“[A]n amendment to a pleading relates back to the date of the 

original pleading when ... the amendment asserts a claim or defense that 

arose out of the conduct, transaction, or occurrence set out—or attempted 

to be set out—in the original pleading.”). We leave it to the district court 

to assess, in the first instance, whether the amended pleading sufficiently 

addresses this timeliness issue and the other pleading deficiencies we 

identified in the original complaint.