Joseph Allen, IV v. Brown Advisory, LLC ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-1602
JOSEPH P. ALLEN, IV,
Plaintiff-Appellant,
v.
BROWN ADVISORY, LLC, and BROWN
INVESTMENT ADVISORY & TRUST COMPANY,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-4160-RLM-DLP — Robert L. Miller, Jr., Judge.
____________________
ARGUED JANUARY 6, 2022 — DECIDED JULY 20, 2022
____________________
Before SYKES, Chief Judge, and ROVNER and SCUDDER,
Circuit Judges.
SYKES, Chief Judge. Joseph Allen granted a financial power
of attorney to his daughter Elizabeth Key when he and his
wife experienced declining health and he could no longer
manage their finances. For several years Key used the power
of attorney to make withdrawals from Allen’s investment
accounts held by Brown Advisory, LLC, and Brown Invest-
2 No. 21-1602
ment Advisory & Trust Company, two affiliated investment
firms headquartered in Maryland. Five years later Allen
revoked the power of attorney and sued the two investment
companies in Indiana state court raising contract and
fiduciary-duty claims under Maryland law. He alleged that
Key’s withdrawals (or some of them) were not to his benefit
and that the investment companies should not have honored
them.
The defendants (collectively “Brown Advisory”) re-
moved the suit to federal court. After a procedural skirmish
over whether Key was a necessary party, Allen amended his
complaint to add his daughter as a defendant. Brown
Advisory then moved to dismiss the amended complaint.
The district judge granted the motion, reasoning that the
investment firm could not be liable for breach of contract
because the challenged withdrawals were directed by Key
and authorized by her power of attorney. Regarding the
fiduciary-duty claim, the judge held that Maryland law does
not recognize a separate cause of action for breach of fiduci-
ary duty arising from a contractual relationship. Allen
moved for leave to amend his complaint again, but the judge
denied the motion.
We affirm, though on somewhat different reasoning. The
judge correctly concluded that the power of attorney shields
Brown Advisory from liability for breach of contract. But he
misapprehended Maryland law regarding claims for breach
of fiduciary duty. Just before he issued his dismissal order,
the Maryland Court of Appeals clarified that a plaintiff may
plead a claim for breach of fiduciary duty even when anoth-
er cause of action (like breach of contract) is available to
redress the conduct. Plank v. Cherneski, 231 A.3d 436 (Md.
No. 21-1602 3
2020). Still, the power of attorney shields Brown Advisory
from liability for breach of fiduciary duty just as it does for
breach of contract, so this claim too was properly dismissed.
Finally, the judge was well within his discretion to deny
Allen’s motion to file a second amended complaint. The
deadline for amending the pleadings had expired, so Allen
had to establish good cause for his late motion. See FED. R.
CIV. P. 16(b). He did not do so.
I. Background
Joseph Allen is a native of Crawfordsville, Indiana, a
small city northwest of Indianapolis. After graduating Phi
Beta Kappa from nearby DePauw University in 1959, he
earned a Ph.D. in physics from Yale University in 1965 and
embarked on a successful career in the aerospace industry,
first with NASA’s space program and later with several
private companies, the last of which was headquartered in
Arlington, Virginia. He retired in 2004.
Shortly after retiring, Allen engaged Maryland-based
Brown Advisory as an investment advisor, executing two
agreements that are relevant here. Under the first, Allen
authorized the company to “supervise and direct invest-
ments” for the assets in his Brown Advisory investment
accounts. In the second, he established a retirement trust
account for which Brown Advisory would serve as the
trustee. As of November 2013, Allen’s IRA accounts with the
firm were valued at approximately $2.3 million (part of
about $7.9 million in total assets belonging to Allen and his
wife as listed in a summary prepared by Brown Advisory).
In December 2014 Allen and his wife moved to the Grand
Oaks Assisted Living Community in Washington, D.C. His
4 No. 21-1602
wife was experiencing rapidly advancing dementia, and
Allen—who was suffering from alcoholism and mild cogni-
tive impairment—could no longer care for her at their home
in the district.
A year before this move, Allen had granted a durable
power of attorney to his daughter Elizabeth Key so she
could help manage his finances. The July 2013 instrument
authorized Key to act in Allen’s name for a broad range of
financial transactions, including those involving financial
institutions, retirement accounts, trusts, real estate, personal
and family maintenance, social security, Medicare, and tax
matters. It also provided that “any third party who receives
a copy of this document may act under it,” and further
specified that Allen would indemnify third parties for “any
claims that arise … because of reliance on this power of
attorney.”
In November 2014, a month before he moved to Grand
Oaks, Allen granted a similarly sweeping but much more
detailed durable power of attorney to Key, replacing the
earlier one. Like the 2013 instrument, the 2014 version
specified that “any third party receiving a duly executed
copy of this document may rely on and act under it.” The
2014 power of attorney also contained a similar indemnifica-
tion clause in which Allen agreed to “indemnify and hold
harmless any third party from any and all claims because of
good faith reliance on this instrument.”
Allen’s condition worsened at Grand Oaks. He attributes
his decline to actions by the facility’s physicians placing him
on powerful psychotropic drugs that are not meant for
patients suffering from active alcoholism. His brother—a
physician practicing in Louisville—eventually intervened
No. 21-1602 5
and took steps to assist his brother in making changes to his
care. In April 2019 Allen moved from Grand Oaks to
Wellbrooke of Crawfordsville, an assisted-living facility in
his Indiana hometown. The physicians at the new care center
took him off the psychotropic medications, and he commit-
ted to maintaining his sobriety. With those changes, his
condition rapidly improved. Later that month he retained
counsel and granted a new financial power of attorney to his
brother, revoking the earlier ones he had granted to Key.
The effectiveness of the revocation was contested, and in
August 2019 Brown Advisory filed an interpleader action in
federal court in Maryland in an attempt to settle the dispute.
We steer clear of that controversy because the events rele-
vant here occurred during Allen’s time at Grand Oaks, when
Key’s power of attorney was unquestionably in effect.
In October 2019 Allen sued Brown Advisory in Indiana
state court asserting claims under Maryland law for breach
of contract and breach of fiduciary duty. (All agree that
Maryland law applies.) Brown Advisory removed the case to
federal court based on diversity of citizenship. See 28 U.S.C.
§ 1332(a). Allen is a citizen of Indiana, the affiliated Brown
Advisory companies are citizens of Maryland, and the
amount in controversy exceeds $75,000.
Following removal, Brown Advisory moved to dismiss
the action for failure to join Key as a necessary party. See
FED. R. CIV. P. 12(b)(7). The motion became moot when Allen
filed an amended complaint adding Key (a citizen of
Washington, D.C.) as a defendant. Allen and Key have since
settled, and she is not a party to this appeal.
6 No. 21-1602
The chief allegations in the amended complaint concern
withdrawals from Allen’s accounts at Brown Advisory. He
alleges that while he was at Grand Oaks, Key used the
power of attorney to direct the withdrawals, many of which
were not to his benefit. The challenged transactions include a
one-time withdrawal of $125,000 as well as regular with-
drawals of $5,000 ostensibly for “incidental expenses” for
Allen’s wife. Allen further alleges that the withdrawals
caused him to incur excess tax penalties of $90,000 per year
(for at least two years). By the time Allen left Grand Oaks,
his Brown Advisory IRA accounts were valued at less than
$600,000.
Allen additionally alleges that his children sold two of
his real properties—Key sold one while his son sold the
other—and did not fully credit the proceeds to his Brown
Advisory accounts. He claims that the sales occurred “with
Brown Advisory’s participation,” although he does not
explain what this participation entailed. Finally, Allen
alleges that Brown Advisory occasionally declined to take
his phone calls, failed to provide him with (unspecified)
“specific information” about his accounts “on multiple
occasions,” and refused to cover unidentified expenses
associated with his move to Crawfordsville.
Brown Advisory moved to dismiss for failure to state a
claim, see id. R. 12(b)(6), arguing that it cannot be liable for
breach of contract because its actions were taken at Key’s
direction and in reliance on her power of attorney. The
power of attorney was attached to the amended complaint,
and Allen does not dispute that Brown Advisory carried out
the complained-of withdrawals at Key’s direction. Brown
Advisory also argued that Maryland does not recognize a
No. 21-1602 7
claim for breach of fiduciary duty as an independent cause
of action arising out of a contractual relationship.
Before the judge ruled on the motion, the Maryland
Court of Appeals (the state’s highest court) issued an im-
portant decision clarifying state fiduciary-duty law and
recognizing breach of fiduciary duty as a stand-alone cause
of action at law. Plank, 231 A.3d at 466. Especially relevant
here, the court held that a plaintiff may assert a claim for
breach of fiduciary duty even when another cause of action
is available to redress the same conduct. Id. Brown Advisory
promptly notified the court and Allen of this development
and sent them a copy of the Plank decision. But Allen rested
on his original briefing and did not explain the significance
of Plank to the district court.
Two months later the judge granted the motion and dis-
missed the case. On the contract claim, the judge agreed with
Brown Advisory that Key’s power of attorney shielded the
company from liability. On the fiduciary-duty claim, he
accepted the now-obsolete argument that Maryland does not
recognize a cause of action for breach of fiduciary duty
arising from a contractual relationship. He did not address
Plank, apparently overlooking the notice from Brown
Advisory.
Allen moved to amend his complaint a second time. His
proposed second amended complaint sought to implicate
Brown Advisory in various other financial decisions made
by him or his family. These include allegations that Brown
Advisory “did nothing to stop” him from giving a deed of
gift to his son and that the company improperly handled
information about an unrelated trust not managed by Brown
Advisory.
8 No. 21-1602
The judge denied leave to amend. First, the motion was
late. It came six weeks after the deadline to amend the
pleadings had expired. Rule 16(b)(4) of the Federal Rules of
Civil Procedure requires “good cause” for a late amendment;
the judge ruled that Allen had no good excuse for his tardi-
ness. Alternatively, the judge considered the motion under
Rule 15(a)(2), the general rule for amending pleadings. As an
independent ground for denying the motion, he held that
any further amendment would unduly prejudice Brown
Advisory.
II. Discussion
Allen challenges the dismissal of his amended com-
plaint—both the contract and fiduciary-duty claims—and
the denial of his motion to file a second amended complaint.
The judge’s rulings are subject to different levels of appellate
scrutiny. We review the dismissal order de novo, accepting
as true the facts alleged in Allen’s amended complaint and
drawing all reasonable inferences in his favor. W. Bend Mut.
Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). To
survive a motion to dismiss for failure to state a claim, a
plaintiff must allege “enough facts to state a claim 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
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). We review the denial of the motion to amend for
abuse of discretion. Zenith Radio Corp. v. Hazeltine Rsch., Inc.,
401 U.S. 321, 330 (1971); Carroll v. Stryker Corp., 658 F.3d 675,
684 (7th Cir. 2011).
No. 21-1602 9
A. Breach of Contract
To state a claim for breach of contract, Allen had to iden-
tify a contractual obligation that Brown Advisory owed him
and a breach of that obligation. RRC Ne., LLC v. BAA Md.,
Inc., 994 A.2d 430, 442 (Md. 2010); Taylor v. NationsBank,
N.A., 776 A.2d 645, 651 (Md. 2001). The amended complaint
alleges that Brown Advisory allowed Key to make with-
drawals from Allen’s accounts that were not ultimately for
his benefit and increased his tax burden.
As an initial matter, Allen struggles to identify a contrac-
tual obligation pertinent to his allegations of breach. He
points to Brown Advisory’s obligation to “supervise and
direct investments” in his investment accounts. That provi-
sion, however, imposes a contractual duty to manage assets
in Allen’s accounts, not a duty to restrict withdrawals made
by him or his attorney-in-fact. Allen also notes that the
company had certain “powers” to manage and protect his
retirement trust account. But those seem to be just that—
powers to manage a trust—and not an obligation to restrict
withdrawals made by those authorized to make them.
Ultimately, however, the contract claim is foreclosed by
Key’s power of attorney. A third party generally cannot be
liable for allowing an action specifically authorized by a
power of attorney. See Vinogradova v. Suntrust Bank, Inc.,
875 A.2d 222, 228 (Md. Ct. Spec. App. 2005), abrogated on
other grounds by Plank, 231 A.3d 436; see also, e.g., Bank IV,
Olathe v. Capitol Fed. Sav. & Loan Ass’n, 828 P.2d 355, 364–65
(Kan. 1992). Here, the power of attorney granted Key the
authority to make withdrawals from Allen’s accounts. And
the instrument expressly invited third parties to rely on it by
10 No. 21-1602
promising to indemnify them for actions taken under and in
reliance on it.
Allen argues that Brown Advisory had a duty to assess
the reasonableness and prudence of Key’s withdrawals
notwithstanding her power of attorney. No such duty,
however, is found in any of the relevant contracts. Indeed,
Key’s power of attorney approved Brown Advisory’s con-
duct by authorizing Key to withdraw money to the same
extent that Allen could. See Vinogradova, 875 A.2d at 228;
3 AM. JUR. 2D Agency § 79 (2013) (“A financial institution has
no duty to determine that the holder of a valid power of
attorney is not engaging in self-dealing before honoring a
request for a withdrawal of funds in the name of the princi-
pal.”). It is true that the company might face liability for
knowingly assisting Key in perpetrating a fraud against
Allen or otherwise breaching a duty she owed to him. See
Bank IV, 828 P.2d at 364–65; RESTATEMENT (SECOND) OF
AGENCY § 312 (AM. L. INST. 1958). But the first amended
complaint contains no allegations suggesting that Brown
Advisory did any such thing. Accordingly, Key’s power of
attorney shields Brown Advisory from liability for allowing
the complained-of withdrawals.
Moving on from the withdrawals, Allen argues that other
allegations in the first amended complaint state a claim for
breach of contract. He points first to Brown Advisory’s
failure to ensure that the proceeds of two real-property sales
directed by his children were credited to his accounts. This
does not state a claim for breach of contract because Allen
has not alleged that the company had any legal duty, let
alone a contractual duty, with respect to the property sales.
Indeed, he does not even allege that the properties were
No. 21-1602 11
under the company’s management and provides only the
vague remark that the sales occurred “with Brown
Advisory’s participation.”
Finally, Allen points to his allegations that Brown
Advisory occasionally failed to take his calls or provide
information and refused to cover unspecified expenses
associated with his move to Crawfordsville. These sparse
allegations do not support a plausible inference that the
company breached any contractual obligation. The judge
properly dismissed Allen’s claim for breach of contract.
B. Breach of Fiduciary Duty
Until recently Maryland law pointed in different direc-
tions about the circumstances under which a plaintiff could
plead breach of fiduciary duty as a stand-alone cause of
action. The state’s intermediate appellate court struggled to
interpret Kann v. Kann, 690 A.2d 509 (Md. 1997), the once-
leading case on the matter, and sometimes held that a breach
of fiduciary duty was not cognizable as an independent
claim for money damages. See, e.g., George Wasserman &
Janice Wasserman Goldsten Fam. LLC v. Kay, 14 A.3d 1193,
1219 (Md. Ct. Spec. App. 2011).
In Plank the Maryland Court of Appeals clarified the law.
The court held that breach of fiduciary duty is a cause of
action with three elements: (1) the existence of a fiduciary
relationship; (2) the fiduciary’s breach of a duty owed to the
beneficiary; and (3) harm to the beneficiary. Plank, 231 A.3d
at 466. And importantly here, a plaintiff can plead the cause
of action even when another cause of action, such as breach
of contract, is available to redress the same conduct. Id. The
remedies available, however, are limited to those historically
12 No. 21-1602
available for the particular type of fiduciary relationship and
breach at issue. See id. at 466–67.
As we’ve explained, Plank was decided shortly before the
judge issued his decision dismissing Allen’s case. Brown
Advisory brought the opinion to the judge’s attention,
sending a copy to Allen and the court. But Allen remained
silent on the import of Plank, and the judge overlooked it.
Nevertheless, our review is de novo, and we may affirm the
decision on any ground supported by the record. Jones v.
Cummings, 998 F.3d 782, 785 (7th Cir. 2021). Now that
Maryland’s fiduciary-duty law has been clarified, we apply
the new understanding to Allen’s claim.
A fiduciary relationship arises when one party places
special confidence in another who is bound to act for the
interest of the first. See Anderson v. Watson, 118 A. 569, 575
(Md. 1922); Travel Comm., Inc. v. Pan Am. World Airways, Inc.,
603 A.2d 1301, 1320 (Md. Ct. Spec. App. 1992). The amended
complaint adequately alleges the existence of a fiduciary
relationship. Allen gave Brown Advisory money to manage
investments on his behalf, thereby imposing on the company
the obligation to act for Allen’s benefit within the scope of
that relationship. See Travel Comm., 603 A.2d at 1320; see also
Green v. H&R Block, Inc., 735 A.2d 1039, 1048 (Md. 1999)
(explaining that an agent is a fiduciary to his principal
within the scope of the agency relationship).
The difficulty for Allen is alleging a breach of a duty
within the scope of the fiduciary relationship. A breach
would surely arise if, for example, Brown Advisory invested
Allen’s assets for its own benefit in an act of self-dealing. See,
e.g., SEC v. Cap. Gains Rsch. Bureau, Inc., 375 U.S. 180, 194
(1963). The amended complaint does not allege any facts that
No. 21-1602 13
suggest self-dealing. Rather, Allen’s chief allegation is that
the company should not have allowed Key to make certain
withdrawals from his accounts. As we’ve already explained
with respect to the contract claim, Key’s power of attorney
shields Brown Advisory from liability for this conduct.
Changing the theory of liability to breach of fiduciary duty
does not expose the company to liability because it had no
fiduciary obligation to refuse to carry out transactions
authorized by the power of attorney.
Allen’s other allegations fare no better under the new
theory of liability. As to the challenged real-estate sales,
Allen does not tell us what role Brown Advisory played in
the sales, nor does he even provide allegations allowing us
to infer that the properties were within the fiduciary rela-
tionship. Likewise, the allegations regarding occasional
failures to communicate and to cover unspecified moving
expenses are too vague to infer that Allen is entitled to relief.
The fiduciary-duty claim was properly dismissed.
C. Motion to Amend the Pleadings
Allen also challenges the denial of his motion for leave to
file a second amended complaint. Rule 15(a), the general rule
for amending pleadings, permits a plaintiff to amend once as
a matter of course within certain time limits; after that the
plaintiff must obtain the consent of his adversary or the
leave of court. FED. R. CIV. P. 15(a). Allen’s motion, however,
faced an additional hurdle because it came after the deadline
for amending the pleadings had expired. See id.R. 16(b)(3)(A) (providing that the district court must issue a
scheduling order that limits the time to amend the plead-
ings). Under Rule 16(b)(4), he had to establish “good cause”
for the late amendment. A district judge is entitled apply
14 No. 21-1602
Rule 16(b)(4)’s heightened standard before turning to
Rule 15(a); failure to satisfy either rule is fatal to the motion
to amend. See Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th
Cir. 2011). In this case the judge considered and denied
Allen’s motion under both Rule 16(b)(4) and Rule 15(a).
We begin with Rule 16(b)(4), which provides that a party
seeking to amend the pleadings after the expiration of the
deadline in the scheduling order must show “good cause”
for the late amendment. The central consideration in as-
sessing whether good cause exists is the diligence of the
party seeking to amend. Id. at 720; Trustmark Ins. Co. v. Gen.
& Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005); see
also FED. R. CIV. P. 6(b)(1) (providing that a district court may
extend a missed deadline for “good cause” when a “party
failed to act because of excusable neglect”).
Allen claims that his proposed second amended com-
plaint was inspired by documents that he had recently
obtained from his old law firm (a third party to this litiga-
tion). He received the documents in batches, with the last
batch arriving about a month before the deadline to amend
(and more than two months before he moved to amend).
Allen claims that he needed the time to review and under-
stand the documents before moving to amend.
Generally speaking, it is reasonable to conclude that a
plaintiff is not diligent when he in silence watches a deadline
pass even though he has good reason to act or seek an
extension of the deadline. See Bell v. Taylor, 827 F.3d 699, 706
(7th Cir. 2016); Adams v. City of Indianapolis, 742 F.3d 720, 734
(7th Cir. 2014); Brosted v. Unum Life Ins. Co. of Am., 421 F.3d
459, 463–64 (7th Cir. 2005). That is what happened here. As
the deadline to amend approached, Allen received and
No. 21-1602 15
reviewed the documents purportedly inspiring his motion to
amend; yet he did not move to amend or seek an extension
of the deadline to do so.
Allen further argues that his lateness should be excused
because he was locked in discovery disputes with Brown
Advisory as the deadline approached. That is not a good
excuse either. Allen’s motion to amend did not rely on any
documents obtained through discovery, nor does he other-
wise explain how the discovery disputes frustrated his
ability to move to amend earlier. Allen provided no good
excuse for his untimeliness, so the judge’s decision to deny
the motion under Rule 16(b)(4) was comfortably within his
discretion.
Though Rule 16(b)(4) alone justifies the denial of Allen’s
motion to amend, the judge additionally concluded that the
motion should be denied under the more lenient standard in
Rule 15(a)(2), which provides that “[t]he court should freely
give leave [to amend] when justice so requires.” As the text
indicates, the rule favors amendment as a general matter. See
Foman v. Davis, 371 U.S. 178, 182 (1962). Nevertheless, a
district court is within its discretion to deny leave to amend
when it has a “good reason” for doing so, such as futility,
undue delay, prejudice to another party, or bad-faith con-
duct. Liebhart v. SPX Corp., 917 F.3d 952, 964 (7th Cir. 2019).
Prejudice to the nonmoving party caused by undue delay is
a particularly important consideration when assessing a
motion under Rule 15(a)(2). See, e.g., id. at 965; Dubicz v.
Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004).
An amended pleading is less likely to cause prejudice if it
comes without delay or asserts claims related to allegations
asserted in prior pleadings. See Empress Casino Joliet Corp. v.
16 No. 21-1602
Balmoral Racing Club, Inc., 831 F.3d 815, 832 (7th Cir. 2016).
Conversely, prejudice is more likely when an amendment
comes late in the litigation and will drive the proceedings in
a new direction. See, e.g., McCoy v. Iberdrola Renewables, Inc.,
760 F.3d 674, 687 (7th Cir. 2014) (affirming the denial of a
motion to amend brought at a late stage that introduced new
theories of liability); Johnson v. Cypress Hill, 641 F.3d 867,
872–73 (7th Cir. 2011) (similar). Such an amendment will
often require significant discovery on new issues.
Allen’s proposed second amended complaint sought to
take the litigation into new factual territory, implicating
Brown Advisory in various financial decisions made by
Allen or his family. Those allegations are arguably futile
because they appear to rest on the questionable assumption
that the company had a duty to stop decisions made by
others. In any case, inserting these issues into the case so late
in the day would have prejudiced Brown Advisory by
driving the litigation in a new direction as discovery on the
original issues was nearing completion. Furthermore, once
the judge issued his dismissal order—which came after the
deadline for amending the pleadings had passed—Brown
Advisory withdrew actions it had initiated in other jurisdic-
tions to enforce subpoenas to uncooperative third parties. If
the judge had granted Allen’s motion to file a second
amended complaint, the revived suit would have required
Brown Advisory to refile those actions.
Moreover, Allen has not said why he could not have ob-
tained the documents from his own law firm earlier in the
litigation. Without any explanation, the proposed second
amended complaint looks more like an effort to keep Brown
No. 21-1602 17
Advisory locked in litigation rather than an understandable
delay beyond Allen’s control. See McCoy, 760 F.3d at 687.
Resisting this conclusion, Allen points to our precedents
explaining that ordinarily a plaintiff whose original com-
plaint has been dismissed for failure to state a claim should
be given at least one chance to amend. E.g., Runnion ex rel.
Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,
519 (7th Cir. 2015). Amendment is often warranted under
those circumstances because the dismissal order may reveal
deficiencies that the plaintiff can rectify with an amended
pleading, allowing the dispute to be resolved on the merits.
See, e.g., Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir.
2010). Allen’s situation does not fit with those cases, howev-
er, because he had already amended once and because the
deadline for amending the pleadings had passed. Adams,
742 F.3d at 734. It’s also worth noting that the rationale of
those cases does not apply here because the proposed sec-
ond amended complaint would have added new theories of
liability rather than shored up the deficiency of the allega-
tions in the prior complaint.
Accordingly, the judge justifiably denied Allen’s motion
to file a second amended complaint under both Rule 15(a)(2)
and Rule 16(b)(4). And because Allen’s first amended com-
plaint failed to state a claim, the judgment of the district
court is AFFIRMED.