139 F.R.D. 634 | N.D. Ill. | 1991
Defendant has moved to dismiss the complaint and plaintiffs seek to file an amended complaint which will name the proper plaintiff. For the reasons stated below, the court denies defendant’s motion as moot and grants plaintiffs’ motion to file an amended complaint.
FACTS
Plaintiff trust funds filed a complaint against defendant alleging that defendant had not made required payments to the funds. Defendant filed a motion to dismiss the complaint, arguing that the plaintiffs did not have standing to bring suit under ERISA and section 301 of the Labor-Management Relations Act. Plaintiffs responded by requesting leave to file an amended complaint naming the proper plaintiff.
DISCUSSION
A dismissal of a complaint without leave to amend—which is what defendant seeks here—would be, in effect, a dismissal with prejudice. That would ordinarily be too harsh a result to impose upon a party who has simply named the wrong plaintiff—for instance, as here, naming the funds instead of the administrator of the funds. On the other hand, since the funds do not have standing to bring the case in the first place, a dismissal with prejudice would arguably be no disadvantage to the funds. To be sure of that, however, one would need to explore the possibility that a final dismissal of the funds’ case might have a collateral effect upon the right of the administrator to file essentially the same claims on behalf of the funds. This is not an exercise which would warrant the time of the court or the parties.
The effect of an amended complaint would be to supersede the original complaint. An amended complaint “completely eliminates the original complaint from the instant litigation.” Tasner v. Billera, 379 F.Supp. 809, 824 n. 3 (N.D.Ill.1974); see also Lubin v. Chicago Title & Trust Co., 260 F.2d 411, 413 (7th Cir.1958). If the administrator went to the Clerk’s Office and filed a complaint in his own name, the fact that the funds had filed an earlier complaint would have no affect on the viability of the claims asserted in the administrator’s complaint. The motion to amend the instant complaint seeks to accomplish the same thing: to file a new complaint, in the name of the proper plaintiff, which will have the effect of completely superseding the pending complaint filed by the funds. Substitution of the proper plaintiff by way of an amended complaint is ordinarily proper, and it has been held error to preclude such an amendment. Staren v. American Nat’l Bank and Trust Co. of Chicago, 529 F.2d 1257, 1262-64 (7th Cir.1976).
Moreover, the distinction made by the court in Pressroom between a case that involves a limitations problem and a case that does not is one this court does not understand. Limitations has nothing to do with subject matter jurisdiction nor, as far as this court can see, does it have anything to do with the right to amend. Limitations is a defense, and the way to raise it is by answer or motion addressed to the complaint. It is not something that is raised in opposition to the filing of a complaint.
Finally, if the question is really whether the court has jurisdiction to permit an amendment, there would be no role for discretion. Because the reasoning of Pressroom is not persuasive, this court would be disinclined to follow it even if it did stand for the proposition that this court lacks the power to permit an amended complaint to be filed.
What defendant’s position comes down to is that, while the administrator can file a complaint against defendant, he can do so only by paying a $120.00 filing fee and obtaining a new docket number.
Plaintiff should assume that defendant will insist upon formal service of the amended complaint and a new summons. See Pressroom, 700 F.2d at 893-94 n. 9. No time should be wasted arguing about the need for service. Plaintiff should effect service without delay.
Defendant requests leave of court to file a Rule 11 motion. See ¶ 11 of Defendant’s Brief. The court will not deny leave, but points out to counsel for defendant that it regards defendant’s argument based on Pressroom as itself a possible Rule 11 violation. The case is set for a status conference on November 27,1991, at 11:00 a.m. to discuss the matter of sanctions. Mr. Donald D. Schwartz, who signed the complaint, and Mr. Richard F. Nelson, who signed defendant’s objection to the motion for leave to file an amended complaint, should be prepared to show why sanctions should not be imposed against each of them.
CONCLUSION
Plaintiffs’ motion for leave to file an amended complaint is allowed. An amended complaint may be filed by November 22, 1991. Summons is to issue on the amended complaint. Defendant’s motion to dismiss the original complaint is denied as moot. Case is set for a status conference on November 27, 1991, at 11:00 a.m. to discuss the matter of possible Rule 11 sanctions in connection with the original complaint and defendant’s objection to the motion to file an amended complaint.
. The plaintiff in the proposed amended complaint would be James Murphy, Administrator and Fiduciary of plaintiff funds. Mr. Murphy is a proper plaintiff. See, e.g., Giardono v. Jones, 867 F.2d 409, 411 (7th Cir.1989).
. At oral argument on plaintiffs' motion for leave to file an amended complaint, counsel for defendant appeared to concede that, aside from his point about subject matter jurisdiction, this was the practical difference between filing an amended complaint and opening a new case.
. In a recent Seventh Circuit case, the court mentioned, without further comment, the fact that a plaintiff who had failed to allege diversity of citizenship (subject matter jurisdiction) was allowed to file an amended complaint. Chicago Downs Association, Inc. v. Dennis R. Chase, 944 F.2d 366, 368 (7th Cir.1991). Since lack of subject matter jurisdiction is something a court is required to raise on its own motion, Rice v. Rice Foundation, 610 F.2d 471, 474 (7th Cir. 1979), the failure of the court to note any lack of jurisdiction over the amended complaint would indicate that it saw no jurisdictional problem.