Joseph Allen, IV v. Brown Advisory, LLC

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.