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With Congress not taking action on the Supreme Court’s proposed rule amendments in April, amendments to Rules 16 and 26 are scheduled, along with a new Rule 16.1.
Regarding Rule 16, subsection (b) will be amended to include the timing and method for complying with Rule 26(b)(5)(A), which addresses claiming privilege or work-product protection. Rule 16.1 is new, and addresses initial Rule 16 conferences in multidistrict litigation.
Rule 26(f) is amended similarly to require counsel—in their Rule 26(f) discovery conference—to include in their discovery plan the “timing and method for complying with Rule 26(b)(5)(a).”
The Committee Notes are informative on this change, providing: “Rule 26(f)(3)(D) is amended to address concerns about application of the requirement in Rule 26(b)(5)(A), which requires that producing parties describe materials withheld on grounds of privilege or as trial-preparation materials in a manner that ‘will enable other parties to assess 26 the claim.’ Compliance with Rule 26(b)(5)(A) can involve very large burdens for all parties.”
Limitations on amending pleadings: In Lewis v. AbbVie, Inc., 152 F.4th 807 (7th Cir. 2025), plaintiff sued alleging retaliation involving alleged fraud. In the District Court, defendant moved to dismiss under Rule 12(b)(6), and plaintiff amended as of right. Defendant again moved to dismiss, and Plaintiff responded on the merits and alternatively asked for an opportunity to amend once again rather than dismiss with prejudice.
Judge Leichty dismissed the action with prejudice and denied amendment. On appeal, the Seventh Circuit affirmed. With respect to the amendment front, Judge Kolar writing for the Seventh Circuit wrote at some length, which is informative on the standards for amendment as follows:
Finally, we address Lewis’s alternative argument that the district court erred by dismissing his complaint without affording him an opportunity to amend. Rule 15(a) directs district courts to “freely give leave [to amend] when justice so requires,” and “favors amendment as a general matter.” Allen v. Broad Advisory, LLC, 41 F.4th 843, 853 (7th Cir. 2022). But that principle has limits. “Where a plaintiff repeatedly fails to cure deficiencies, the district court enjoys ‘broad discretion’ to deny leave to amend.”
Knowlton v. City of Wauwatosa, 119 F.4th 507, 520 (7th Cir. 2024) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)). So, we review the district court’s decision for abuse of discretion and will reverse “only if no reasonable person could agree with that decision.” Freeman v. Ocwen Loan Servicing, LLC, 113 F.4th 701, 707 (7th Cir. 2024).
When a plaintiff does not propose how they would cure a deficient complaint, a district court can “quite reasonably” find an amendment “would suffer the same flaws as the one before it.” James Cape & Sons Co. v. PCC Const. Co., 453 F.3d 396, 401 (7th Cir. 2006); cf. Foster v. DeLuca, 545 F.3d 582, 584–85 (7th Cir. 2008) (holding abuse of discretion when district court “made no determination regarding the sufficiency of the amended complaint nor did it provide any explanation for why it denied the motion to amend.”)
Rather, “[g]ranting leave to amend is pointless when the plaintiff fails to ‘suggest to the court the ways in which [he] might cure the defects.’” Fosnight v. Jones, 41 F.4th 916, 924–25 (7th Cir. 2022) (quoting Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 335 (7th Cir. 2018)); Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir. 2012) (same, collecting cases).
Lewis “never has attempted to explain how [he] would amend h[is] complaint to state a claim for relief,” either during the proceedings below or on appeal. Gonzalez-Koeneke v. West, 791 F.3d 801, 808–09 (7th Cir. 2015).
The district court said as much when denying amendment. See Stewart Info., 665 F.3d at 943 (holding “most important” reason the district court properly denied amendment was because plaintiff “did not offer any meaningful indication of how it would plead differently”). After four years of litigation, and a prior amendment, we agree with the district court that if Lewis had communicated a fraud concern, “he would have alleged it by now.”
Dec. 12 Federal Civil Practice Seminar: The Annual Federal Civil Practice seminar featuring Indiana federal judges is set for Friday, Dec. 12 in Indianapolis, live at Barnes & Thornburg, and virtual, from 1:30 to 4:45 p.m. Register at www.josephmaley.org or email the undersigned to hold your seat.•
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John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP.
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