The opinion of the court was delivered by: Judge Nora Barry Fischer
Pending before the Court is the Plaintiff‟s "Motion for Leave to File Seconded [sic] Amended Complaint." (Docket No. 146). Defendants Donald Hockenberry, Daniel Lynch, Joseph Palanchar, and Howard Sutton responded. (Docket No. 156). Plaintiff replied on June 23, 2011. (Docket No. 162). A hearing on the motion was held on June 30, 2011. (See Docket No. 164). The motion is now ripe for disposition. For the following reasons, Plaintiff‟s motion  is GRANTED.
Because the factual background of this case is presented elsewhere, (see Docket Nos. 58, 160), and the facts have little bearing on this motion, they are not presented again here.
This case was originally filed on September 21, 2009. (Docket No. 1). On November 24, 2009, Defendants filed a motion to dismiss. (Docket No. 16). In response, Plaintiff filed an Amended Complaint, (Docket No. 21), rendering moot the initial motion to dismiss. (Docket No. 24). Subsequently, Defendant Timothy Wentroble filed a motion to dismiss the Amended Complaint. (Docket No. 28).
A short time thereafter, on January 7, 2010, Defendants Hockenberry, Lynch, Palanchar, and Sutton also filed a motion to dismiss the Amended Complaint. (Docket No. 35). Defendants Clayton Stoner and Edward Johnston filed another motion to dismiss on January 11, 2010, and two days later, Defendant Erik Keller likewise filed a motion to dismiss. (Docket Nos. 39, 42). Plaintiff filed his response to all the pending motions to dismiss on February 5, 2010. (Docket Nos. 50, 52, 54, 56). The Court denied all motions to dismiss on March 29, 2010. (Docket No. 58-59).
On May 17, 2010, the Court entered a Case Management Order indicating that any motions to amend the pleadings or to add new parties were to be filed by October 13, 2010. (Docket No. 76). Subsequently, on October 7, 2010 and again on February 16, 2011, the Court amended the Case Management Order by, among other things, extending the deadline for motions to amend the pleadings or add parties. (Docket Nos. 109, 135). The deadline set by the February 2011 Order was April 30, 2011. (Docket No. 135).
April 30, 2011 was a Saturday. The following Monday, May 2, 2011, Plaintiff timely filed the instant motion. (Docket No. 146). Attached to the motion was Plaintiff‟s proposed Second Amended Complaint. (Docket No. 146-13).
Plaintiff argues that he should be granted leave to file a Second Amended Complaint, and that the new complaint should relate back to the date of filing of the original complaint. (Docket No. 147 at 4). The first basis Plaintiff puts forth is that Federal Rule of Civil Procedure 15(a)(2) broadly requires that leave to amend a Complaint "shall be freely given when justice so requires." (Id. at 5). Accordingly, Plaintiff argues that the amended allegations "arose out of the same conduct attributed to the original Defendants in the original pleading." (Id. at 6). Further, he asserts that the prospective Defendants had constructive notice of the lawsuit under either of the "shared attorney" or the "identity of interest" standards. (Id. at 7-8). Therefore, says Plaintiff, the prospective Defendants either knew or should have known that they would have been named, but for Plaintiff‟s excusable "mistake." (Docket No. 147 at 13).
After arguably establishing that he has satisfied the requirements for leave to amend, Plaintiff next argues that the late motion to amend was not "unduly delayed." (Id. at 14). There was no delay according to Plaintiff because he had to review documents and take depositions in order to "draft a Second Amended Complaint that would be able to withstand a Rule 12(b)(6) motion to dismiss." (Id. at 14). Plaintiff then argues that Defendants must show that prejudice would inure if the motion to amend is granted. (Id. at 15).
The Defendants argue that Plaintiff is not merely seeking to amend the complaint to add new parties and rectify clerical errors. (Docket No. 156 at ¶ 1). Defendants claim that the proposed Second Amended Complaint "change[s Plaintiff‟s] entire theory of the case for the third time." (Id. at ¶ 2). As the Defendants paint the case, Plaintiff‟s original complaint was based on a theory of hazing and cover-up -- at worst, state torts and not constitutional violations. (Id. at ¶ 3). In light of Defendants‟ motion to dismiss, Plaintiff simply re-characterized the events in question from "hazing" to instances of "violence" for which the "supervisory defendants" ...