Opinion
Case No. 98 C 8002 Consolidated with 99 C 1856)
July 23, 2001
ORDER
Before the Court is plaintiff's "Motion For Leave To File Third Consolidated Complaint". The motion is denied .
The underlying action arises from the criminal convictions of plaintiffs Billy Wardell and Donald Reynolds for aggravated criminal sexual assault, armed robbery, attempted criminal sexual assault, and attempted armed robbery in connection with an attack on two University of Chicago women on May 3, 1966. Plaintiffs were identified by the victims as having committed the aforesaid crimes. They were tried and convicted in 1988. Subsequent DNA testing "proved that Wardell and Reynolds were not guilty of the offenses charged." Subsequently, their "convictions were vacated on November 17, 1997, and after spending eleven and a half years in prison, [plaintiffs] were granted clemency and pardoned by the State of Illinois." Thereafter, each plaintiff initiated his respective civil rights action for wrongful conviction, contending that his conviction was secured as a result of the failure of City employees to produce certain exculpatory evidence.
Wardell v. City of Chicago, 75 F. Supp.2d 851, 853 (N.D. Ill. 1999).
Id.
The original civil rights action was filed by plaintiff Billy Wardell. It was filed on November 12, 1998, approximately 32 months ago. Pursuant to a motion to dismiss filed by defendants City of Chicago and the Chicago Police Crime Laboratory, that complaint was dismissed on January 21, 1999. Plaintiff then filed a First Amended Complaint on February 22, 1999. It was dismissed on April 29, 1999. Plaintitf's Second Amended Complaint was dismissed on June 22, 1999, and on the same date, plaintiff Donald Reynolds' case was consolidated with plaintiff Wardell's. On June 22, 1999, leave of court was granted the plaintiffs to file a consolidated complaint. Plaintiffs' First Consolidated Complaint was dismissed on September 2, 1999. Plaintiffs have been proceeding under the allegations of their Second Consolidated Complaint which was filed in September 2, 1999. For approximately 22 months now, the Second Consolidated Complaint has governed the discovery decisions, the expert retention decisions, and the litigation strategies and defenses of the parties.
Docket Entry No. 24.
Dismissal by District Judge Castillo was implicit, because he granted plaintiffs leave of court to file a Second Consolidated Complaint, and concurrently denied the defendants' motions to dismiss theFirst Consolidated Complaint as moot. Docket Entry No. 31.
The acts complained of occurred between May of 1966 through 1988. Deprivation of plaintiffs' civil rights and freedom continued until their discharge from prison on November 17, 1997.
Federal civil rights actions are governed by the personal injury statute of limitations of the state where the alleged injury occurred. Accordingly, in plaintiffs' case the applicable limitations period is the State of Illinois' two — year statute of limitations. Thus, the limitations period for plaintiffs' claims ran in November of 1999. Their motion to amend comes roughly 18 months beyond the applicable statute of limitations.
Wilson v. Giesen, 956 F.2d 738. 740 (7th Cir. 1992), citing,Wilson v. Garcia, 471 U.S. 261, 279, 105 S.Ct. 1938, 1948-1949, 85 L.Ed.2d 254 (1985).
35 ILCS 5/13-202.
See generally, Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 n. 2 (7th Cir. 1995).
Rule 15(a) of the Federal Rules of Civil Procedure provides that, except for amendments that are a matter of right, a party may amend its pleading only by leave of court or by written consent of the adverse party, and leave shall be freely granted when justice so requires. However, a trial judge need not allow an amendment when there is undue delay, bad faith, or dilatory motive on the part of the moving party, a history of repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or futility of the amendment.
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Bethany Pharmacal Company v. OVC. Inc., 241 F.3d 854, 861 (7th Cir. 2001).
In support of their "Motion For Leave To File Third Consolidated Complaint", plaintiffs state that thirteen depositions have been taken to date, and that these thirteen depositions "have revealed additional evidence Plaintiffs seek to plead, supportive of their claims." At the outset, we note that there is absolutely no need for the plaintiffs to plead evidence. There is no evidence pleading under the Federal Rules of Civil Procedure. All that is required is notice pleading. Indeed, the United States Court of Appeals for the Seventh Circuit has repeatedly noted that " fact pleading is not required in federal court ." Moreover, there is no charge from the defendants that the Second Consolidated Complaint is ambiguous, vague, or incapable of being understood. As noted earlier, the Second Consolidated Complaint has governed the action for the past 22 or more months, and the defendants have apparently had no difficulty dealing with it.
"Motion For Leave To File Third Consolidated Complaint", at 1 (filed May 10, 2001).
Weiss v. Cooley, 230 F.3d 1027, 1033 (7th Cir. 2000) (emphasis added).
Finally, we note, that contrary to plaintiffs' assertions, many of the "additional evidence" pleadings do not advance the defendants' knowledge or understanding of the claims against them or materially support the plaintiffs' claims in any way. For example, Paragraph 8 of the Second Consolidated Complaint alleges the following:
Chicago police officers who were investigating the assaults prepared Vitullo kits from samples taken from the two victims. J.C. would later claim that it was Reynolds and another unidentified attacker who raped her repeatedly. C.H. would later claim it was Wardell who attempted to rape her.
The Third Consolidated Complaint's corresponding paragraph, Paragraph 7, alleges as follows:
Chicago police officers who were investigating the assaults prepared Vitullo kite from samples taken from the two victims. Specifically, vaginal smears, nail scrapinss . head hair and pubic hair combings. as veil as clothes, were taken from both victims at Bernard Mitchell Hospital. J.C. would later claim that it was Reynolds and another unidentified attacker who raped her repeatedly. C.H. would later claim that it was Wardell who attempted to rape her.
At the outset, we note that the above — referenced "additional evidence" allegation can not possibly be "newly discovered" evidence. At the latest, it had to have been discovered or should have been discovered in the Spring or Summer of 2000. In any event, there is absolutely no necessity for pleading "additional evidence" of the type noted above.
Although we speak specifically to Paragraph 7 of the Third Consolidated Complaint, our analyses and comments are not limited to said paragraph, but rather, extend to the many paragraphs of the same ilk.
The "additional evidence" allegation of Paragraph 7 of the Third Consolidated Complaint is not predicated on newly discovered evidence; nor does it contain facts of a character different from those pled in Paragraph 8 of the Second Consolidated Complaint that would advance, support, or even change the plaintiffs' basic claims. Plaintiffs make no effort to articulate why specifically identifying the Vitullo kit samples taken from the rape victims materially supports, or advances their claims, or warrants leave of court to file yet another amended complaint, particularly, an amendment on the heels of the anticipated filing of an adverse summary judgment motion. Denial of a motion to amend "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." Courts have often emphasized that leave to amend calls into play "the pertinent balance of equitable considerations ." Accordingly, we cannot ignore the fact that the action has pended for over 32 months, spearheaded by three amended complaints. Discovery has pended for more than 22 months. As noted earlier, it is highly unlikely that the components of a Vitullo kit investigation were discovered during the four months of discovery in the year 2001. It is the kind of thing that was probably discovered early in the year 2000. In any event, the Second Consolidated Complaint has governed the action for a substantial period of time, and has undoubtedly governed the direction of the defendants' summary judgment motion. Fairness dictates that the time has come to discern whether or not the Second Consolidated Complaint can stand on its own two feet, so to speak, and withstand the force of a summary judgment motion. As courts often note, "[t]here must be a point at which a plaintiff makes a commitment to the theory of its case."
Hindo v. University of Health Sciences/The Chicago Med. Sch., 65 F.3d 608, 615 (7th Cir. 1995).
Quaker State Oil Refining Corp. v. Garrity Oil Co., 88's F.2d 1510, 1517 (1st Cir. 1989).
Johnson v. Methodist Med. Ctr., 10 F.3d 1300, 1304 (7th Cir. 1993), cert. denied, 512. U.S. 1107, 114 S.Ct. 2102, 128 L.Ed.2d G64 C1994).
Plaintiffs proffer as a ground for granting their motion the fact that they filed the motion before the filing of defendants' anticipated summary judgment motion:
Plaintiffs are acting timely due to the very recent announcement by Defendants that they wish to file a Motion for Summary Judgment without taking additional discovery. The additional evidence heretofore is being presented to this Court as quickly as possible, very shortly after that announcement.
"Motion For Leave To File Third Consolidated Complaint", ¶ 6, at 2.
The Third Consolidated Complaint was filed on May 10th, 2001, shortly after the defendants' announcement, in open court, that they intended to file a motion for summary judgment within a week or so of their announcement. Defendants filed their Motion for Summary Judgment on May 25th, 2001.
Docket Entry No. 81.
Docket Entry No. 83.
In an effort to resolve the action out of court, several weeks prior to the May 10th, 2001 proceedings before the Court, defense counsel sent plaintiffs' counsel a letter pointing out wherein the Second Consolidated Complaint was factually susceptible to summary judgment. The letter invited the plaintiffs to drop their claims. Thus, the plaintiffs were well aware of the basis of the anticipated summary judgment motion well before the filing of their "Motion For Leave To File Third Consolidated Complaint".
Notice of the anticipated filing of the defendant's summary judgment motion was also given in the "City of Chicago's Motion To Modify Discovery Schedule" filed on April 30th, 2001. The basis for the motion was set forth as follows:
Docket Entry No. 75. The motion was heard in opencourt on May 8, 2001, and entered and continued. Docket Entry No. 78.
2. The gist of this litigation involves plaintiffs' claim that a crime lab report prepared by Chicago Police Department Crime Laboratory employee Maria Pulling was not produced to the defense and that the failure to produce this report resulted in plaintiffs' convictions.
3. In fact, City will demonstrate indisputably that the June 17, 1986 report of Pulling was not only produced by the Crime Lab to the Office of the State's Attorney, but that the report was also subsequently produced by the prosecutors to the public defender who represented Wardell and Reynolds on August 4, 1986, well before the criminal trial. Plaintiffs' allegation that the "exculpatory" report was not produced is therefore factually and demonstrably false twice over. Thus, the theories of liability against City, all of which depend upon the veracity of this allegation, must also fall.
"City of Chicago's Motion To Modify Discovery Schedule", at 2.
Accordingly, even though the defendants' summary judgment motion was not yet on file at the time of filing of plaintiffs' "Motion For Leave To File Third Consolidated Complaint", plaintiffs were fully apprised of the basis of the motion.
Strategic use of motions to amend to avoid adverse rulings on summary judgment motions is frowned upon . The timing of the "Motion For Leave To File Third Consolidated Complaint", coming as it does on the eve of the announced anticipated filing of an adverse motion for summary judgment, suggests that it is nothing more than an effort to avoid the consequences of a potentially devastating summary judgment motion. Leave of court to file an amended complaint is not appropriate when amendment is sought to avoid the adverse consequences of a summary judgment motion:
See, Glesenkamo v. Nationwide Mut. Ins. Co., 71 F.R.D. 1, 4 (N.D. Cal. 1974), aff'd per curiam, 540 F.2d 458 (9th Cir. 1976) (plaintiff cannot "circumvent the effects of summary judgment by amending the complaint every time a termination of the action threatens.").
Denying leave to amend is particularly appropriate when a lawsuit is on the verge of final resolution. At such times, the court may deny leave to amend even if the plaintiff seeks to raise potentially meritorious claims.
Groth v. Orkin Extermination Co., Inc., 909 F. Supp. 1143, 1143 (C.D.Ill. 1995). See also, Local 472 v. Georgia Power Co., 684 F.2d 721, 724-25 (11th Cir 1982).
It should be noted that plaintiffs' "Motion For Leave To File Third Consolidated Complaint" makes no effort to identify or correlate any particular "new" or "additional" piece of evidence with any specific deposition or document stemming from the discovery to date. No proffer of any nature whatsoever supporting their claims of newly discovered evidence has been made. As a consequence, the Third Consolidated Complaint appears in tenor and nature like any complaint that could have been filed at the genesis of the action. Its allegations are general in nature — the kind typically found in complaints initiating a Monell cause of action. On their face, the pleadings of the Third Consolidated Complaint do not reflect the unearthing of facts and evidence that one would expect after 22 months of deposition and paper discovery. Indeed, as is more fully noted hereinafter, a number of the counts of the Third Consolidated Complaint seek redress against unknown defendants, many of which by now one would expect to be known.
See, e.g., Groth, 909 F. Supp., at 1147. At the very least, plaintiffs should have identified the discovery that allowed them to learn of the purportedly new evidence, and the date when they received that discovery. Id.
See e.g., Sandcrest Outpatient Servs. v. Cumberland County Hosp. Sys., Inc., 853 F.2d 1139, 1148-49 (4th Cir. 1988) (proposed amendment did not add newly discovered facts or plead different cause of action).
Monell v. Deptartment of Soc. Servs., 436 U.s. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Under Monell, local governments may be sued for constitutional deprivations inflicted pursuant to governmental custom even though such a custom has not received formal approval through the body's official decision — making channels. To prevail on a Monell claim, plaintiffs must establish (1) that they suffered a constitutional injury, and (2) that the defendant authorized or maintained a custom of approving the unconstitutional conduct. Thompson v. Boggs, 33 F.3d 847, 859 (7th Cir. 1994).
Paragraph 12 of the Second Consolidated Complaint charges, among other things, that "Defendants, Fish and Employees [unknown City of Chicago Employees), deliberately failed to prepare a report on the blood from the plant material and the evidence from the Vitullo kit that would have exculpated [plaintiff Billy] Wardell." In the Third Consolidated Complaint, plaintiffs retrack from the more forceful allegations of Paragraph 12 of the Second Consolidated Complaint, and merely allege that the "plant material with the blood on it was not referenced in the June 3, 1986 report prepared by Pamela Fish", and that the "plant material with the blood on it was not referenced in the June 17, 1986 report prepared by Maria D. Pulling." The tenor of Paragraph 12 changes from intentional misconduct (the Second Consolidated Complaint) to negligent omission (the Third Consolidated Complaint). Arguably, the change would include charges of gross negligence as well. In any event, are we to understand that discovery to date has shown that the complained of conduct was neither deliberate nor intentional, but rather, was negligent omission? Nowhere in their "Motion For Leave To File Third Consolidated Complaint" do the plaintiffs confess error, or seek to delete any erroneous allegations.
Second Consolidated Complaint, ¶ 12, at 3 (emphasis added
Third Consolidated Complaint, ¶ 12 and 13, at 3.
Review of the Third Consolidated Complaint reveals that it pleads very little "additional" or "new" evidence, it does, however, assert some new conclusory allegations. It is these few new conclusory allegations which warrant denial of plaintiffs' motion. For example, Paragraph 14 and 15 of the Third Consolidated Complaint allege, in essence, that further serological testing would have produced exculpatory evidence for Wardell. No facts are pled from which one could discern how and in what way further serological testing would have produced exculpatory evidence. The allegation is conclusory, devoid of any factual support, and speculative. There is no comparable allegation in the Second Consolidated Complaint. In any event, an allegation of this nature can not nor does it in any way add support to any of the plaintiff's claims in this action, or add to the worthiness of the motion to amend. Factually inadequate allegations do not warrant the grant of leave of court to amend, particularly, after the action has pended for over 32 months.
Although a number of the paragraphs of the Second Consolidated Complaint and the Third Consolidated Complaint parrot each other, or are otherwise exceedingly similar, some differ. However, the difference appears to have nothing to do with facts uncovered in discovery, and everything to do with word choice. For example, Paragraph 33 of theSecond Consolidated Complaint charges, among other things, that "certain personnel of Defendant, City, including Defendants Fish and Employees, selectively concealed, covered up, and testified falsely regarding evidence they discovered that was exculpatory to suspects, particularly African-American suspects." Paragraph 41 of the Third Consolidated Complaint is the sister to Paragraph 33 of the Second Consolidated Complaint and charges, among other things, that "Defendants, City and Employees, followed tan) ongoing deliberate policy, procedure, and custom and selectively tested, mishandled, contaminated, failed to completely disclose and testified incorrectly, inaccurately, and falsely regarding evidence they discovered that was exculpatory to suspects, particularly African-American suspects." Paragraph 33 of the Second Consolidated Complaint charges deliberate and intentional misconduct. Paragraph 41 of the Third Consolidated Complaint is a hybrid. It charges intentional misconduct along with negligent conduct. The Paragraph contains two conceptual opposites. To "selectively" test or to testify "falsely" is intentional conduct. To "mishandle" or testify "incorrectly" or "inaccurately" is negligent conduct. Paragraph 41 of the proposed Third Consolidated Complaint is a confusing allegation. To permit the filing of an amended complaint which is less clear than its predecessor amended complaint makes no sense. It does not strike us as a sound exercise of our judicial discretion. Moreover, simply putting a new spin on information that a plaintiff learns or should have learned shortly after filing the lawsuit does not two years later constitute pleading "newly discovered evidence." Newly discovered evidence that might justify a motion to further amend a thrice amended complaint is evidence that was not and could not reasonably have been discovered earlier . The basic underlying facts of Paragraph 33 of the Second Consolidated Complaint and. Paragraph 41 of the Third Consolidated Complaint are the same and therefore were available at the time of filing of the Second Consolidated Complaint. Both paragraphs charge, in essence, that certain defendant employees selectively concealed or failed to completely disclose certain exculpatory evidence and, further, they also testified falsely regarding evidence they discovered to be exculpatory to suspects, particularly African American suspects. This scenario, to-wit: pleading facts that at worst were available at the time of filing of the original complaint and, at best, were available at the time of filing of the Second Consolidated Complaint, is present with respect to many of the paragraphs of the Third Consolidated Complaint, further, revealing that it is not predicated on newly discovered facts.
Second Consolidated Complaint, ¶ 33, at 6.
Third Consolidated Complaint, ¶ 41, at 7.
Granting or denying a motion for leave to file an amended pleading is a matter purely within the sound discretion of a trial court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)
Groth, 909 F. Supp., at 1149.
Id, citing, Figgie Int., Inc. v. Miller, 966 F.2d 1178, 1180 (7th Cir. 1992)
Paragraph 51 of the Third Consolidated Comnlaint throws a new "wrinkle" into plaintiff's allegations by charging that the defendants "deliberately failed to train, supervise, monitor and correct [Pamela Fish's inaccurate and deceptive testimony] . . . thereby directly and proximately causing Wardell and Reynolds to be wrongfully tried and convicted for crimes they did not commit." The "wrinkle" is its placement in the complaint. Generally speaking, allegations of a deliberate failure to act are specifically delineated in Paragraph 81 of Count III of theSecond Consolidated Complaint. In the Third Consolidated Complaint, for some unknown and non-readily-apparent reason, such allegations are made a part of the common allegations for all counts of the complaint. In any event, notwithstanding, the use of the word "deliberately", this allegation is predicated more on negligent conduct than on intentional conduct. The allegation becomes one of "reckless disregard" or "reckless indifference", so negligent as to amount to deliberate conduct. Again, as noted earlier, the importance of this "change" is not readily discernable.
Count I of the Second Consolidated Complaint is styled, "Section 1983 Civil Rights Violation — 5th and 15th Amendments-Fish". As evident by Paragraph 74 of this Count, it is directed solely against then defendant, Pamela Fish:
As a direct and proximate result of the conduct of Defendant Fish, Plaintiffs have been deprived of their right to due process in violation of the Fifth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983.
Count I of the Third Consolidated Complaint is not against former defendant Pamela Fish. It is against defendants unknown City of Chicago employees . Count I of the Third Consolidated Complaint, ostensibly, opens up and expands discovery into new areas. Count I of the Second Consolidated Complaint focused upon then defendant Pamela Fish. Undoubtedly, the discovery conducted under this Count perforce also focused upon Fish. Obviously, then, the discovery conducted under Count I of the Second Consolidated Complaint will not suffice for Count I of theThird Consolidated Complaint.
Count I of the Third Consolidated Complaint does not amplify, detail, or in any way better inform the defendants of the charges against them. If anything, it creates uncertainty, because now the defendants are described as unknown City of Chicago employees, whereas before it was just one employee, to-wit: defendant Pamela Fish. This is a material difference.
The scenario that occurs with respect to Court I of the two complaints also occurs with respect to Count V of the two complaints. Count V of theSecond Consolidated Complaint is styled. " Section 1983 Civil Rights Violation — 4th and 14th Amendments — Fish". Count V of the Third Consolidated Complaint is styled "Section 1983 Civil Rights Violation — 4th and 14th Amendments — Employees". Like Count I, Count V has the potential of expanding the case. Expansion of the case does have the potential of unnecessarily delaying the case. Where, as here, "discovery would have to be reopened after the accumulation of an extensive and expensive record and after the legal issues involved ha[ve] already been developed", denial of leave to amend is appropriate.
The same holds true for Count VII of the Second Consolidated Complaint, and its sister, Count VI of the Third Consolidated Complaint. Count VII is styled "Intentional Infliction of Emotional Distress — Fish". Count VI is styled "Intentional Infliction of Emotional Distress — Employees".
See, e.g., Kennedy v. Josephthal Co., Inc., 814 F.2d 798, 806 (1st Cir. 1986)
As noted previously, Counts I, V, and VI of the Third Consolidated Complaint have the potential of expanding the case discovery-wise. Such an expansion would prejudice the defendants in that it would require them to expend significant additional resources in the form of manpower, energy, and money to conduct further discovery.
Officially, fact discovery closed on April 20, 2001. Per agreement of the parties, some additional deposition or paper discovery may have proceeded past that date. In any event, allowance of the filing of theThird Consolidated Complaint would require re-opening of discovery.
Count III, styled "Monell Violation — 5th and 14th Amendments — City", is the cornerstone of the Second Consolidated complaint. Paragraph 80 thereof charges the following:
Defendant City Has Acted To Deprive Plaintiffs of Constitutional Rights .
80. City has acted to deprive Wardell and Reynolds of Constitutional and federally protected rights by:
( a) Deliberately and knowingly facilitating the custom of concealing exculpatory evidence or evidence that leads to exculpatory evidence from defendants;
( b) Deliberately and knowingly condoning the custom of concealing exculpatory evidence or evidence that leads to exculpatory evidence from defendants.
Paragraph 81 thereof charges the following:
Defendant City Deliberately Failed To Act. Depriving Plaintiffs of Constitutional Rights .
81. Defendant City has failed to act, at a minimum, with deliberate and reckless indifference to Plaintiffs' Constitutional and federally protected rights, by . . .
Nineteen failures to act or omissions are listed under Paragraph 81, to-wit: isubparagraphs (a) through (s)
Count II of the Third Consolidated Complaintis the sister count to Count Ill of the Second Consolidated Complaint. Count II is the cornerstone of the Third Consolidated Complaint and is styled, "Monell Violation — 5th and 14th Amendments — City". Paragraph 88 of Count II of the Third Consolidated Complaint charges the following:
( a) Deliberately and knowingly facilitating the custom of employees offering inaccurate and deceptive testimony that proximately caused the wrongful conviction of defendants;
( b) Deliberately and knowingly condoning policies that lead to the mishandling, contamination, and concealment of exculpatory evidence or evidence that leads to exculpation of defendants;
( c) Deliberately and knowingly selectively excluding exonerating evidence from testing.
Paragraph 89 of Count II of the Third Consolidated Complaint charges the following:
Defendant City Deliberately Failed To Act. Depriving Plaintiffs of Constitutional Rights .
89. Defendant City has failed to act, at a minimum, with deliberate and reckless indifference to Plaintiffs' Constitutional and federally protected rights, by:
Paragraph 89 lists ten failures to act or omissions, to-wit: subparagraphs (a) through (j).
Although the Second Consolidated Complaint and the Third Consolidated Complaint both plead Monell claims, as is evident from Counts II and III quoted above, the Monell claims differ. And, the difference is material.
The foundational allegation for Count III of the Second Consolidated Complaint is Paragraph 80's charge of deliberate concealment of exculpatory evidence. Arguably, under certain circumstances, whether or not evidence is exculpatory could be a hybrid question of fact and law. More likely than not, however, the question of whether or not certain evidence is exculpatory is the type of issue that is determinable as a matter of law on summary judgment.
Paragraph 88 of the Third Consolidated Complaint seeks to avoid the pitfalls of Paragraph 80 by pleading matters that are clearly factual issues. Whether or not testimony is deceptive; whether or not deliberate mishandling of evidence occurred; and, whether or not deliberate and selective exclusion of exculpatory evidence occurred are factual issues not so easily resolved on summary judgment.
Paragraph 88 does not rest on newly discovered evidence. The gist of its allegations can be found in subparagraphs (a) through (s) of Paragraph 81 of the Second Consolidated Complaint.
We are constrained to agree with the defendants that the record as a whole strongly suggests that plaintiffs' "Motion For Leave To File Third Consolidated Complaint" is the proverbial "end-run" around a potentially threatening summary judgment motion. The timing of the motion to amend, the nature and character of the new allegations, the fact that few, if any, of the allegations are based on newly discovered evidence; and the proximity of the filing of the motion to the filing of a threatening summary judgment motion, all suggests that the filing of the motion to amend is primarily for the purpose of avoiding defendants' summary judgment motion.
Finally, in further support of their "Motion For Leave To File Consolidated Complaint", plaintiffs charge that the Second Consolidated Complaint must be amended because defendant Pamela Fish is now no longer a defendant in the action. All parties concerned are well aware of the fact that former defendant Pamela Fish is no longer a defendant in the action. On balance, granting leave of court to permit the filing of aThird Consolidated Complaint merely to reflect the fact that former defendant Pamela Fish is no longer a party to the action is neither reasonable nor appropriate.
Accordingly, it is hereby adjudged. decreed. and ordered as follows :
1. Plaintiffs' "Motion For Leave To File Third Consolidated Complaint" is hereby denied.
2. Plaintiffs' "Motion For Leave To File Third Consolidated Complaint" is unduly delayed and prejudicial. No adequate explanation for the delay has been proffered by the plaintiffs.
3. Plaintiffs' proposed Third Consolidated Comolaint is not based on new evidence unavailable at the time of filing of the Second Consolidated Complaint.
4. The record strongly suggests that plaintiffs' "Motion For Leave To File Third Consolidated Complaint" is an attempt to circumvent the defendants' summary judgment motion.
So Ordered .
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