HORNADAY-ALBERTS v. FRECHETTE et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KRISTINA HORNADAY-ALBERTS, )
)
Plaintiff, )
)
v. ) No. 1:25-cv-00337-JPH-TAB
)
REBECCA FRECHETTE, et al., )
)
Defendants. )
ORDER ON IHA DEFENDANTS' MOTION TO STRIKE
PLAINTIFF'S SECOND AMENDED COMPLAINT
I. Introduction
Defendants Indianapolis Housing Agency, Kimberly Wize1, and Yvonda A. Bean
(collectively, the IHA Defendants) move to strike Plaintiff Kristina Hornaday-Alberts' second
amended complaint [Filing No. 91]. [Filing No. 93.] The IHA Defendants argue that Plaintiff's
"Second Amended Complaint and Request for a Jury Trial" [Filing No. 91] should be stricken
because it is not the amended pleading the Court granted her permission to file. As explained in
more detail below, the Court agrees. The amended pleading Plaintiff filed contains material
differences from the proposed pleading. Accordingly, Defendants' motion to strike Plaintiff's
second amended complaint is granted.
1 Defendants indicate that Wize is incorrectly named in Plaintiff's complaint as "Kimberly Wise."
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II. Background
Plaintiff filed her initial complaint in this action in February 2025. [Filing No. 1.] In
June 2025, Plaintiff sought leave to file a first amended complaint, which the Court granted.
[Filing Nos. 46 and 49.] On September 19, 2025, Plaintiff filed a motion for leave to file a
second amended complaint and attached a proposed amended complaint to her motion. [Filing
No. 81]. The attached proposed amended complaint was titled "Second Amended Complaint for
Declaratory, Injunctive, Relief, Damages and Jury Trial." [Filing No. 81-1.] At the time,
Defendants had motions to dismiss pending. [Filing Nos. 56, 58, and 60.]2 Thus, on October 8,
2025, the Court granted Plaintiff's motion. [Filing No. 90.] The Court's order stated Plaintiff had
until October 26, 2025, to file her second amended complaint, and all pending motions to dismiss
were denied as moot.
On October 17, 2025, Plaintiff filed an amended complaint titled "Second Amended
Complaint and Request for Jury Trial." [Filing No. 91.] However, Defendants have moved to
strike Plaintiff's second amended complaint because it contains significant differences from the
proposed second amended complaint [Filing No. 81-1] that the Court granted Plaintiff leave to
file.
III. Discussion
Defendants argue that Plaintiff's second amended complaint should be stricken because it
is not the amended pleading that the Court granted her permission to file. In addition to a
different title, it contains significantly different allegations than the proposed amended complaint
attached to Plaintiff's motion to amend. Different verbiage is used, including completely new
2 While not specifically articulated in the order granting Plaintiff's motion, the Court had hoped
that allowing Plaintiff to make the requested second amendments would resolve some of the
problems noted in Defendants' motions to dismiss.
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factual allegations, citations to different regulations and statutes, and factual allegations.
Plaintiff's amended pleading [Filing No. 91] contains two completely new counts—a 10th and
11th claim for relief—which Plaintiff has never asserted in this case previously and which she
did not include in her proposed second amended complaint [Filing No. 81-1] attached to her
motion to amend. Plaintiff's motion seeking leave to amend specifically listed Claims 1-9
against defendants and made no mention of the claims she now asserts as Claims 10 and 11.
[Filing No. 81-1, at ECF p. 11-12; compared to Filing No. 91, at ECF p. 47-48 (containing the
new claims).] Defendants provided the Court with a comparison document highlighting the
substantive differences between the proposed amended complaint [Filing No. 81-1] and the
updated version [Filing No. 91]. [Filing No. 93-1.]
Defendants argue that Plaintiff was required under Federal Rule of Procedure Rule 15 to
seek the Court's permission to file an amended complaint, and under Southern District of Indiana
Local Rule 15-1 to attach the proposed amended complaint to her motion. Instead, Plaintiff filed
an amended complaint she had not been granted permission to file. In doing so, she thwarted the
advanced notice that Local Rule 15-1 provides to other parties regarding what her amendment
will entail. Defendants cite Innovative Water Consulting, LLC v. SA Hospital Acquisition Group,
LLC, No. 1:22-cv-500, 2023 WL 130531, at *4 (S.D. Ind. Jan. 9, 2023), where "after submitting
a proposed amended pleading and obtaining leave from this Court to file that pleading, [the
plaintiff] filed a different pleading containing a new allegation and new cause of action." This
Court struck the amended complaint because the plaintiff "had no authority to file any pleading
inconsistent with the Proposed Amended Complaint." Id.
Plaintiff attacks Defendants' reliance on Innovative Water on the grounds that it is an
unpublished decision. However, that does not prevent Defendants from citing to it or this Court
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from considering it as persuasive authority. Plaintiff also attempts to distinguish the facts of
Innovative Water, but in doing so, she misstates them. [Filing No. 106, at ECF p. 5.] Plaintiff
claims that in Innovative Water, this Court struck the plaintiff's amended pleading because the
plaintiff had filed it without obtaining leave of court. This is inaccurate. In reality, the Court
stated that the plaintiff filed a motion for leave to amend the complaint, but after the Court
granted leave to amend, the plaintiff filed an amended complaint that differed from the proposed
pleading—containing both a new factual allegation and a new claim. Id.
Plaintiff also misled the Court regarding the holding in QFS Transportation, LLC v.
Intermodal Cartage Co., LLC, No. 1:22-cv-2356-TWP-MDJ, 2023 WL 8527207, at *5 (S.D. Ind.
Sept. 8, 2023). In QFS Transportation, this Court denied the defendants' motion to strike the
plaintiff's amended complaint, despite differences between the amended pleading and the
proposed version. However, the only difference between the proposed version and the amended
complaint—which Plaintiff here fails to mention—was the deletion of inaccurate information
about the plaintiff's principal place of business. Id. The Court considered the "immaterial nature
of the alleged omission" and failed to see any reason to require the plaintiff to file another
amended complaint. Id. In contrast, in the present case, Plaintiff made much more extensive
changes than just updating location information. Plaintiff's amended pleading [Filing No. 91]
contains not just one new factual allegation or claim (like in Innovative Water), but several
significant edits, including additions to her factual allegations and the assertion of two new
claims. Thus, Innovative Water and QFS Transportation both support the relief Defendants
request—striking Plaintiff's second amended complaint.
Plaintiff's response is full of references to Rule 15's refrain that leave to amend should be
freely granted when justice so requires. See Fed. R. Civ. P. 15(a)(2). This gets Plaintiff nowhere,
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since the Court did grant Plaintiff leave to amend. [Filing No. 90.] Moreover, Local Rule 15-1's
requirement that the moving party attach a copy of the proposed amended pleading to the motion
allows opposing parties to learn exactly what amendments are being sought and informs their
decision-making regarding whether to object. See S.D. Ind. L.R. 15-1. Local Rule 15-1 also
places the proposed amended pleading before the Court before it determines whether "justice so
requires" allowing the amendment. However, by filing an amended pleading with significant
differences, Plaintiff circumvented the Court's procedures and thwarted Defendants' ability to
object. Plaintiff's position—that a party who seeks and obtains leave to amend can then file a
completely different complaint than the version attached to the motion—is preposterous. It
would render Local Rule 15-1's requirement to attach a copy of the proposed complaint
meaningless. Thus, Defendants' motion to strike Plaintiff's second amended complaint is
granted. [Filing No. 93.]
IV. Conclusion
For all these reasons, Defendants' motion to strike Plaintiff's second amended complaint
is granted. [Filing No. 93.] Plaintiff's second amended complaint [Filing No. 91] is stricken.
Plaintiff has seven days to file an amended complaint consistent with the one attached to her
original motion to file a second amended complaint. If Plaintiff fails to do so, the Court will
strike any amended complaint that does not materially match the version she received leave to
file, her prior complaint will be reinstated as the operative complaint, and Defendants' motions to
dismiss will reviewed.
Date: 11/25/2025_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution:
All ECF-registered counsel of record via email
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