United States District Court, D. Nebraska
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation; and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
SUPERVALU INC., a Delaware corporation; Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff,
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants, Counterclaimants, and Third-Party Defendants,
TREVOR BOROWIAK, Third-Party Defendant.
Michael D. Nelson, United States Magistrate Judge.
matter is before the Court on the Motion for Leave to File
Supplemental Counterclaim and Supplemental Third-Party
Complaint (Filing No. 171) filed in the Lead Case by
Defendants, Affiliated Foods Midwest Cooperative, Inc. and
Associated Wholesale Grocers, Inc. (“AFM/AWG”).
AFM/AWG requests leave to file a supplemental counterclaim
and third-party complaint against Borowiak IGA Foodliner,
Inc. (“Borowiak IGA”) and Trevor Borowiak adding
a claim for violations of the Illinois Eavesdropping Act.
(Filing Nos. 171-1, 172). The Court will deny the motion.
Borowiak plaintiffs initially filed the instant action
against AFM on October 12, 2016, alleging that AFM failed to
fulfill certain obligations under a Supply Agreement dated
December 29, 2015. (Filing No. 1). The Court later joined AWG
as a defendant. (Filing No. 22). On November 3, 2016, AFM/AWG
filed a counterclaim against Borowiak IGA and a third party
complaint against Trevor Borowiak. (Filing No. 11). On May
16, 2017, AFM/AWG filed an amended Counterclaim against
Borowiak IGA for breach of the parties' Supply Agreement
and an incorporated Promissory Note and for fraudulent and
negligent misrepresentations, and an amended third-party
complaint against Trevor Borowiak for breach of guarantor
obligations, tortious interference with contract, and
fraudulent and negligent and misrepresentations. (Filing No.
assert that during discovery in this case, the Borowiak
parties produced “three recordings of conversations
between [Trevor Borowiak] and representatives from AFM and/or
AWG” taken during meetings in Illinois without the
consent of the other conversation participants. (Filing No.
172 at p. 2). The deposition of Trevor Borowiak indicates
that the recordings were taken “before any lawsuits
were commenced, ” with the first one occurring sometime
in September 2016, the second one in October 2016, and the
third in late January or early February 2017. (Filing No. 173-1
at p. 4; Trevor Borowiak Deposition 8:6-9:17, 18:9-16,
22:16-17). AFM/AWG now move the court pursuant to Rule 15(d)
of the Federal Rules of Civil Procedure for leave to
supplement their counterclaim and third-party complaint by
adding a claim against the Borowiak parties for violations of
the Illinois Eavesdropping Act, 720 Ill. Comp. Stat. §
5/14-1 et seq., “for surreptitiously recording
conversations without the consent of all parties to the
conversation.” (Filing No. 172 at p. 2; Filing No.
Rule of Civil Procedure 15(d) governs supplemental pleadings,
providing, “On motion and reasonable notice, the court
may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be
supplemented.” Fed.R.Civ.P. 15(d). “An amended
pleading is designed to include matters occurring before the
filing of the [pleading] but either overlooked or not known
at the time.” United States v. Vorachek, 563
F.2d 884, 886 (8th Cir. 1977)(quoting Berssenbrugge v.
Luce Mfg. Co., 30 F.Supp. 101, 101 (W.D. Mo. 1939)).
“Unlike amendments, which typically rest on matters in
place prior to the filing of the original pleading,
supplements set out “transaction[s], occurrence[s], or
event[s] that happened after the date of the pleading to be
supplemented.'” Human Genome Scis., Inc. v.
Kappos, 738 F.Supp.2d 120, 122 (D.D.C. 2010)(internal
citation and quotation omitted).
initial matter, AFM/AWG seek to supplement their operative
pleading, the amended Counterclaim and Third-Party Complaint,
which was filed on May 16, 2017. (Filing No. 44). However,
each of the events, transactions, or occurrences that AFM/AWG
seek to add (i.e., the three recordings taken by Trevor
Borowiak) all occurred before May 16, 2017,
which is “the date of the pleading to be
supplemented.” Fed.R.Civ.P. 15(d). In other words,
AFM/AWG's proposed supplemental pleading does not allege
occurrences or events that happened “after the date of
the pleading to be supplemented, ” but instead concern
matters that occurred before the filing of their pleading but
were not known at the time. Fed.R.Civ.P. 15(d);
Vorachek, 563 F.2d at 886. Therefore, it appears
that AFM/AWG's motion is one to amend its pleading, not
to supplement. See, e.g., Vorachek, 563 F.2d at 886
(concluding that Rule 15(a) applied rather than Rule 15(d)
because the significance of the proposed supplements
allegedly occurred prior to the original complaint, though
the plaintiff was not aware of them); Poullard v. Fed.
Bureau of Prisons, 535 F.Supp.2d 146, 149 (D.D.C.
2008)(construing proposed supplemental complaint as a
proposed amended complaint “because plaintiff's
proposed supplemental pleading itself does not allege facts
pertaining to occurrences or events taking place after the
date of the original Complaint[.]”).
this is largely a distinction without difference because
“The erroneous characterization of the corrected
pleading as a ‘supplement to the complaint' is
immaterial.” Vorachek, 563 F.2d at 886 n.1.
Additionally, “Most courts use the same standard in
deciding whether to grant or deny leave to file a
supplemental pleading that is used in deciding whether to
grant or deny leave to amend.” Riggs v. City of
Owensville, No. 4:10-CV-793 CAS, 2011 WL 1576723, at *2
(E.D. Mo. Apr. 26, 2011). Finally, the trial court has broad
discretion to determine whether to grant a party leave to
amend under Rule 15(a) or to supplement under Rule 15(d). See
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 714
(8th Cir. 2008); Minnesota Min. & Mfg. Co. v.
Superior Insulating Tape Co., 284 F.2d 478, 481 (8th
Cir. 1960). Regardless of whether AFM/AWG's motion is
construed as one to supplement or as one to amend, the Court
finds it should be denied.
does not have an absolute right to amend and “denial of
leave to amend may be justified by undue delay, bad faith on
the part of the moving party, futility of the amendment or
unfair prejudice to the opposing party.” Amrine v.
Brooks, 522 F.3d 823, 833 (8th Cir. 2008)(quotation and
citation omitted). Similarly, “[A] party should not be
permitted to supplement a pleading where the supplementation
would hinder judicial efficiency, prejudice the rights of
other parties to the action, or would insert a frivolous
claim.” Hines v. Smith, No. 16-CV-3797
(DSD/SER), 2017 WL 5593526, at *5 (D. Minn. Oct. 23, 2017),
report and recommendation adopted, No. CV
16-3797(DSD/SER), 2017 WL 5564556 (D. Minn. Nov. 17, 2017).
Court finds that permitting AFM/AWG to add a new claim under
the Illinois Eavesdropping Act at this time will cause unfair
prejudice to the Borowiak parties (and necessarily SuperValu,
as these cases have now been consolidated for all
purposes). The above-captioned cases were filed more
than two years ago and largely pertain to contractual
relationships between the parties. AFM/AWG's proposed new
claim under the Illinois Eavesdropping Act is tangentially
related to the Lead Case in that it involves the same
parties; however, addition of the new claim will require
further discovery and depositions unrelated to the claims in
these cases, and would require this Court to interpret
Illinois law in a case that otherwise would not require the
Court to do so. Adding this new claim at this stage of the
proceedings will not “secure the just, speedy, and
inexpensive determination” of this action and will
instead hinder judicial efficiency and only serve to further
derail progress in what has been extremely protracted and
contentious litigation. See Fed.R.Civ.P. 1, 15; see also 6A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 1506 (3d ed.
1998)(“[W]hen the matters alleged in a supplemental
pleading have no relation to the claim originally set forth
and joinder will not promote judicial economy or the speedy
disposition of the dispute between the parties, refusal to
allow the supplemental pleading is entirely
justified.”). This is apparent from reading the
parties' briefs in support of and in opposition to the
instant motion. Both parties spend the majority of their
briefs parsing the language of the Illinois Eavesdropping Act
and related case law to determine whether or not
AFM/AWG's proposed claim is frivolous, as recent Illinois
case law and statutory amendments make it unclear whether
Illinois is a one-party consent state. (Filing Nos. 172 and
192 in the Lead Case; Filing No. 200 in the Member Case).
Judicial economy does not favor this Court making that
determination in this action, and there is no reason why
AFM/AWG cannot file a separate action under the Illinois
Eavesdropping Act in a more appropriate forum. Accordingly,
IT IS ORDERED that AFM/AWG's Motion for
Leave to File Supplemental Counterclaim and Supplemental
Third-Party Complaint (Filing No. 171) is denied.
 AFM/AWG's proposed supplemental
pleading alleges that two of the recordings took place on
September 21 and 23, 2016 (before either of the
above-captioned lawsuits were filed), and the third ...