Campania Management Co. v. Rooks, Pitts & Poust

In the
United States Court of Appeals
For the Seventh Circuit

Nos. 01-1651 and 01-1771

CAMPANIA MANAGEMENT COMPANY,
Incorporated,

Plaintiff-Appellant,

v.

ROOKS, PITTS & POUST, a law firm,
and Frank Rowland,

Defendants-Appellees.

ROOKS, PITTS & POUST, a law firm,

Plaintiff-Appellee,

v.

CAMPANIA MANAGEMENT COMPANY,
Incorporated,

Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 00 C 4397 & 00 C 4577--Suzanne B. Conlon, Judge.

Argued January 23, 2002--Decided May 14, 2002

Before BAUER, COFFEY and EVANS, Circuit
Judges.

COFFEY, Circuit Judge. A third-party
claims administrator, Campania Management
Company ("Campania"), hired the law firm
of Rooks, Pitts & Poust ("Rooks") to
defend Metropolitan Rehabilitation
Services, Inc. ("MRSI") in a products
liability case filed against MRSI in the
Circuit Court of Cook County, Ill. In
spite of the fact that Rooks settled the
case, Campania refused to pay Rooks, and
this breach of contract suit followed.
The district judge held a one-day bench
trial and found that Rooks was entitled
to recover attorney’s fees and expenses
totaling $101,300. The judge also awarded
prejudgment interest of $8,700. Campania
appeals, arguing that the district court
abused its discretion by refusing to
continue the case and by denying
Campania’s motions to file an amended
counterclaim and an amended answer
several weeks before trial. Campania also
argues that the court’s rulings on the
breach of contract and interest claims
were against the manifest weight of the
evidence. We affirm.

I. FACTUAL BACKGROUND

A. Campania’s Voluntary Dismissal and
Proposed Amended Answer

Campania retained the Rooks law firm in
October 1994, after Scott Mann, a person
with disabilities, sued MRSI and a co-
defendant, alleging that they were
responsible for supplying him with a
defective wheelchair that collapsed and
caused him to fall to the ground and
fracture his right arm. MRSI was insured
by Credit General Insurance ("CGI"), a
large insurance corporation. CGI hired
Campania to retain counsel and manage the
defense of any claims brought against
CGI’s insureds. Campania selected the
Rooks law firm to represent MRSI and
agreed to pay Rooks’s attorneys and
paralegals hourly rates of $160 and $65,
respectively. The contract further
required that Rooks submit monthly
invoices to Campania and, in turn, be
reimbursed every sixty days for all of
its reasonable fees and expenses.

The lawsuit against MRSI progressed in
Illinois state court and eventually
settled in September 1999 after Mann
backed down from his original demand for
$6.1 million and dismissed his claim in
exchange for $475,000 payable over seven
years. Rooks thereafter presented
Campania with a final invoice for
$101,143 in fees and expenses. Campania
refused to pay, asserting that Rooks had
breached the contract by failing to
submit monthly invoices to Campania
between July 1998 and September 1999.
Campania also maintained that Rooks had
performed legal services that were
substandard because Rooks was unable to
convince the state trial judge to allow
MRSI to bring a counterclaim for
indemnity against the co-defendant, thus
barring the possibility of any recovery
of settlement costs from the co-
defendant.

In response to Campania’s actions, Rooks
sued Campania in state court for breach
of contract. Campania, in turn, filed a
separate legal malpractice claim against
Rooks. Both of these cases were removed
to federal court, consolidated, and
assigned to U.S. District Judge Suzanne
B. Conlon, who entered a Uniform
Scheduling Order immediately after the
assignment of the case in August 2000.
Three months later, upon a joint motion
of the parties, Judge Conlon issued an
amended scheduling order establishing
January 22, 2001 as the deadline for
completing all discovery and filing any
dispositive motions. The order explicitly
stated that "NO FURTHER EXTENSIONS" would
be granted and that trial would commence
during the March 2001 civil term.

This case moved forward uneventfully
until January 16, 2001, when Campania
filed two separate motions a mere six
days before the date for the close of
discovery. In its first motion, Campania
asked the district court to dismiss its
counterclaim for monetary damages caused
by Rooks’s alleged legal malpractice. In
the second motion, Campania asked the
district court for leave to amend its
answer in order to: (1) deny retaining
Rooks and argue that CGI--not Campania--
had hired Rooks to represent MRSI in the
underlying state court suit; and (2)
raise an affirmative defense that, in any
event, Campania was not liable for
damages because Rooks breached the
contract by committing legal malpractice.

Campania’s amended answer reflected a
complete reversal in trial strategy, for
Campania had previously admitted that it
was the party that hired and agreed to
reimburse Rooks for the costs of
defending MRSI. Campania’s about-face was
prompted by the fact that CGI had
allegedly filed for bankruptcy in the
State of Ohio on some date unspecified
prior to January 16, 2001. The practical
effect of CGI’s bankruptcy was that
Campania could no longer anticipate
reimbursement from CGI if the district
court entered a judgment in Rooks’s
favor. Thus, by moving to amend its
pleadings, Campania was attempting to
change its trial strategy and argue that
it was acting merely as an agent for CGI
and, thus, had no legal obligation to pay
Rooks’s fees and expenses.

Naturally, Rooks opposed the motion to
amend, arguing that it would be
prejudiced by Campania’s newly minted
theory of defense because the discovery
deadline was set to expire in six days
and, thus, Rooks would have no
opportunity to depose any witnesses who
might have knowledge about CGI’s business
relationship with Campania. After
considering the parties’ respective
arguments, the trial court entered a
minute order stating that Campania "fails
to show good cause for its delay in
asserting new theories of liability,
while Plaintiffs demonstrate prejudice."
The court granted Campania’s motion to
dismiss its legal malpractice claim but
denied Campania’s motion to amend its
answer on file.

B. Campania’s Proposed Counterclaim and
Motion to Amend, Extend and Continue

In the meantime, Mann commenced a new
lawsuit against Campania in the Circuit
Court of Cook County. This suit was filed
January 25, 2001 and alleged that
Campania failed to make more than the
first two installment payments required
in exchange for Mann’s dismissal of the
case.

On January 31, 2001, a full nine days
after the expiration of the discovery
date, Campania sought leave in federal
court to file a counterclaim that
repackaged and resurrected its earlier
allegations against Rooks. That is to
say, Campania alleged that it was liable
for the damages caused by MRSI’s tortious
conduct only because Rooks had
negligently named Campania--rather than
CGI--as a party to the settlement
agreement. Campania further requested the
district court to reopen discovery and
stay the federal case pending the outcome
of the state court lawsuit, which
ostensibly would determine the exact
extent of Campania’s liability to Mann.
The court denied the motion and barred
Campania from introducing any evidence at
trial in support of its new theory of
defense that CGI--and not Campania--was a
party to Rooks’s contract to perform
legal services for MRSI.

The parties waived their right to a jury
trial and went to trial before the bench
March 19, 2001. After considering the
testimony, documentary evidence, and
applicable case law, the trial judge
concluded that Campania--not CGI--was the
party that hired the Rooks law firm to
defend MRSI. The court determined that
Rooks was acting within the scope of its
authority when settling the case and that
the settlement was fair and reasonable.
The judge also ruled that Rooks billed
Campania at a reasonable rate. In
addition, the court credited the
testimony of Frank Rowland, a partner at
Rooks, who stated that as part of his
normal course of business he regularly
mailed invoices to Campania during the
entirety of the representation between
October 1994 and September 1999. Relying
mainly on Rowland’s testimony, the trial
judge thus found: (1) that Rooks had
substantially complied with the
contract’s monthly billing procedures;
and (2) that any extent to which Rooks
failed to do so consisted of only an
immaterial breach of contract that failed
to absolve Campania of its duty to pay
Rooks for services rendered. Thus, the
court ruled in favor of Rooks on its
breach of contract claim and awarded
$101,143 in compensatory damages plus
$8,740 in statutory prejudgment interest.

II. DISCUSSION

Campania argues that the trial court
committed reversible error in four
separate respects: (1) refusing to allow
Campania to amend its answer; (2)
refusing to allow Campania to amend its
complaint or introduce evidence that
Rooks committed malpractice by including
Campania as a party in the settlement of
the underlying state court lawsuit; (3)
finding as a fact that Campania breached
the contract with Rooks; and (4) awarding
Rooks prejudgment interest. We have
determined Campania’s arguments to be
without merit. We fail to perceive any
abuse of discretion with the judge’s pre-
trial rulings, and we conclude that the
judge’s factual findings and damages
awards were supported by the evidence
presented at trial.

A. Pre-Trial Motion Practice

1. Motion to amend answer

Initially, we consider whether the
district judge erred when denying
Campania’s motion to file an amended
answer, which: (1) disavowed the earlier
admission that Campania hired Rooks to
represent MRSI and sought to assert that
CGI hired Rooks instead; and (2) raised
what Campania called the "affirmative
defense" that it was not liable for
breach of contract because Rooks had
allegedly committed legal malpractice.
Campania claims that it could not have
amended its answer earlier in the
litigation because: (1) it had no
previous knowledge that CGI filed for
bankruptcy; and (2) the malpractice claim
did not accrue until January 25, 2001,
when Mann sued Campania for breaching the
settlement agreement. Campania also
asserts that Rooks would have suffered no
prejudice from the amendment because
"Rooks knew all along that there was an
agency relationship between CGI and
Campania" and that Campania was
unsatisfied with the quality of Rooks’s
legal services. (Br. at 10.)

We review a court’s denial of a motion
to amend an answer for an abuse of
discretion, Justice v. Town of Blackwell,
820 F.2d 238, 240-41 (7th Cir. 1987), and
will reverse "only if the district court
has abused that discretion by not
providing a justifying reason for its
decision." Perrian v. O’Grady, 958 F.2d
192, 194 (7th Cir. 1992). In this case,
we hold that the denial of Campania’s
motion to amend was proper because
Campania failed to act with diligence and
the proposed amendment would have
injected a new issue into the case on the
eve of trial. In addition, we conclude
that Campania’s so-called "affirmative
defense" was not a cognizable affirmative
defense at all; it was merely a rendition
of the facts Campania intended to argue
at trial.

Rule 15(a) of the Federal Rules of Civil
Procedure provides that a party may amend
its pleadings after a responsive pleading
has been served "only by leave of the
court or by written consent of the
adverse party."/1 Although the rule
reflects a liberal attitude towards the
amendment of pleadings, courts in their
sound discretion may deny a proposed
amendment if the moving party has unduly
delayed in filing the motion, if the
opposing party would suffer undue
prejudice, or if the pleading is futile.
Foman v. Davis, 371 U.S. 178, 181-82
(1962); Bethany Pharm. Co. v. QVC Inc.,
241 F.3d 854, 861 (7th Cir. 2001).

We accept the representation of
Campania’s attorney that CGI was placed
into liquidation upon filing its
bankruptcy petition some time after this
case was removed to federal court./2
Fed. R. Civ. P. 11(b). However, nothing in
this record supports Campania’s argument
that it attempted to amend the complaint
and assert an agency theory soon after
learning of CGI’s bankruptcy. This record
is barren of any evidence establishing
the date when CGI became insolvent, or
when the Ohio state court began
liquidation proceedings, or when
Campania’s corporate officers became
aware of these facts, or even when
counsel himself learned of this
information from his client. Even if
Campania had supplied the court with
these facts, we would find it hard to
believe that Campania had no knowledge
whether it was an agent or a contractual
partner of CGI at the time this civil
action was filed./3 If Campania had a
viable agency defense to Rooks’s contract
claim, then it has failed to offer any
explanation why the existence of that
defense was dependent in any way on
whether CGI was (or was not) in
liquidation. Thus, the district court
could have reasonably determined that the
proposed amendment was unduly delayed.
Doe v. Howe Military Sch., 227 F.3d 981,
989-90 (7th Cir. 2001); In re Stavriotis,
977 F.2d 1202, 1204-05 (7th Cir. 1992);
Justice, 820 F.2d at 240-41; Murphy v.
White Hen Pantry Co., 691 F.2d 350, 353-
54 (7th Cir. 1982).

Furthermore, we believe that it was
reasonable for the trial judge to
conclude that Rooks would have been
unduly prejudiced had she granted
Campania’s untimely motion. A trial court
may deny leave to amend when the
amendment would cause the opposing party
to bear additional discovery costs
litigating a new issue and the moving
party does not offer to reimburse the
nonmoving party for its expenses. Cf.
Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 599 (5th Cir. 1981); Select
Creations Inc. v. Paliafito Am. Inc., 830
F. Supp. 1213, 1218 (E.D. Wis. 1993); 6
Wright, Miller & Kane, Federal Practice &
Procedure sec. 1486 at 606-07 (1990).

Campania’s agency defense would have
complicated this straightforward breach
of contract dispute by raising
additional, complex issues merely six
days prior to the discovery deadline that
was agreed upon by both parties. See
Caliguiri v. First Colony Life Ins. Co.,
318 Ill. App.3d 793, 800 (1st Dist. 2000)
(noting that questions of agency are
complicated questions of fact). Because
Campania admitted in its original answer
that it retained Rooks, Rooks could not
have foreseen the possibility of
litigating whether CGI was legally
responsible for paying Rooks’s bills. The
parties had conducted no discovery on
this subject, and discovery would have
delayed this matter for several months,
for at least three potential witnesses
were no longer employed by CGI or
Campania by the time the motion was
filed. We are convinced that the trial
judge was acting within her discretion
when she denied Campania’s motion to
amend its answer and further barred
Campania from introducing any evidence to
support this defense. Principal Mut. Life
Ins. Co. v. Charter Barclay Hosp. Inc.,
81 F.3d 53, 57 (7th Cir. 1996); Sanders
v. Venture Stores Inc., 56 F.3d 771, 773-
74 (7th Cir. 1995); Murphy, 691 F.2d at
353.

It also was proper to deny Campania’s
motion to include what it called the
"affirmative defense" that, if the
factfinder should determine that Campania
was contractually obligated to pay
Rooks’s invoices, then the amount due
should be offset by the amount of damages
allegedly caused by Rooks’s legal
malpractice. A court may determine that a
proposed amendment is futile if it sets
forth facts or legal theories that are
redundant, immaterial, or unresponsive to
the allegations in the complaint. DeSalle
v. Wright, 969 F.2d 273, 277-78 (7th Cir.
1992). Campania tells us that the purpose
of its amendment was to clarify the
reasons why Campania refused to pay
Rooks’s bills. (Br. at 16-18.) We are
convinced that such an amendment was
unnecessary because the burden of proving
substantial performance of the agreement
rested upon Rooks--not Campania. Wildman,
Harrold, Allen & Dixon v. Gaylord, 317
Ill. App.3d 590, 601 (1st Dist. 2000).
Campania’s original answer denied
breaching the contract on the grounds
that Rooks "failed to handle the case
with reasonable care and skill." (Doc.
No. 8 para. 3.) This denial, on its own
terms, squarely placed at issue the
question of whether Rooks fulfilled its
contractual obligations, including its
duty of care. Thus, the so-called
"affirmative defense" raised in
Campania’s amended answer was properly
rejected as superfluous./4 DeSalle, 969
F.2d at 277-78; see also State Farm Mut.
Auto Ins. Co. v. Riley, 199 F.R.D. 276,
279 (N.D. Ill. 2001).

2. Motion to file counterclaim and
continue trial

We next consider Campania’s claim that
the district judge abused her discretion
when refusing to allow Campania to file a
counterclaim, extend discovery, and stay
the case indefinitely pending the
resolution of a separate lawsuit filed
against Campania in Illinois state court.
Because Campania filed the motion nine
days after the deadline for discovery had
passed--a deadline agreed to by the
parties several months earlier--the
district court denied the motion as
untimely. Upon review of the court’s
decision for an abuse of discretion,
United States v. 1948 S. MLK Dr., 270
F.3d 1102, 1110 (7th Cir. 2001), we
conclude that Campania failed to
demonstrate any good cause that would
justify its delay.

In this case, the district court, acting
upon a joint motion of the parties,
entered a scheduling order barring any
further discovery proceedings after
January 22, 2001. Campania sought to
reopen discovery after Mann initiated a
lawsuit against Campania in Illinois
state court on January 25, 2001. Campania
tendered only the first two payments
required under the settlement agreement
but thereafter fell behind in its
obligations; Mann’s lawsuit sought to
recover the damages Campania owed him. In
the proposed counterclaim filed in
federal court, Campania sought
reimbursement for these damages because
it alleged that the Rooks law firm
committed malpractice when it drafted an
agreement making Campania--rather than
CGI--the party liable for paying the
settlement. Campania requested discovery
into Rooks’s alleged malpractice.
Campania also asked Judge Conlon to stay
the federal case until such time as the
pending state court action proceeded to a
judgment purportedly establishing
Campania’s full amount of liability.
Based on the record before us, we are
convinced that the trial court’s denial
of Campania’s motion was proper.

"Courts have a legitimate interest in
ensuring that parties abide by scheduling
orders to ensure prompt and orderly
litigation." 1948 S. MLK Dr., 270 F.3d at
1110. When a party fails to comply with a
deadline imposed in a scheduling order,
Rule 16(b) of the Federal Rules of Civil
Procedure provides that the "schedule
shall not be modified except upon a
showing of good cause and by leave of the
district judge." Campania argues that it
showed good cause for its delay,
asserting that it could not have sued
Rooks until Mann sued Campania to enforce
the settlement agreement. This argument,
however, is premised upon a
misunderstanding of contract law. A
party’s rights and duties under any
contract--including a settlement
agreement, Pohl v. UAL Inc., 213 F.3d
336, 338 (7th Cir. 2000)--accrue at the
time of the contract’s formation rather
than the date when one of the parties
sues the other for damages. See, e.g.,
Casey v. Forest Health Sys., 291 Ill.
App.3d 261 (1st Dist. 1997); see also
Black’s Law Dictionary 322 (1990) (defining
"contract"). Thus, Campania could have
sought recovery from Rooks as early as
September 1999, when Campania signed the
settlement agreement that Rooks had
prepared./5 Its two-year delay in
bringing suit is unexplained in this
record to our satisfaction.

In addition, to the extent that
Campania’s motion also requested the
court to stay its case pending resolution
of Mann’s later-filed state court
lawsuit--a case to which Rooks was not
even a party--the motion should have been
summarily denied. Perrian, 958 F.2d at
195 ("the burden to the judicial system
can justify a denial of a motion to amend
even if the amendment would cause no
hardship at all to the opposing party").
We encourage the district courts to use a
firm hand when shepherding cases to
trial, carefully and thoughtfully
adhering to the deadlines established
after consultation with the parties
pursuant to Rule 16 and Rule 26(f) in
order to "secure the just, speedy, and
inexpensive determination of every
action." Fed. R. Civ. P. 1. Campania should
not have removed this case to federal
court if it wished to proceed in a
leisurely fashion, and we cannot perceive
any reversible error with the court’s
treatment of Campania’s pre-trial
motions. Bethany, 241 F.3d at 861;
Perrian, 958 F.2d at 194-95.

B. Breach of Contract

The next issue we address is whether the
district court erred when finding in
favor of Rooks on its claim of breach of
contract. Campania has waived any
argument that Rooks failed to present
sufficient evidence to support the
conclusion that there was a written
contract between Rooks and Campania, that
Rooks substantially performed its obliga
tions under the contract, or that the
Rooks law firm’s fees and hours were
reasonable./6 Campania’s sole argument
is that the court should have concluded
that "Campania was not liable to Rooks
because Campania was an agent for a
disclosed principal--CGI." (Br. at 22.)
Because Campania has raised a question of
law (i.e., whether the trial judge should
have taken account of principal-agency
law when she analyzed the parties’
contract), we apply de novo review.
Arnhold v. Ocean Atl. Woodland Corp., 284
F.3d 693, 699 (7th Cir. 2002). We hold
that the court properly avoided venturing
into the realm of agency law, for
Campania failed to raise this issue in
its pleadings.

A party cannot obtain recovery or base
its affirmative defense on legal theories
that are not contained in the pleadings.
See, e.g., Grain Traders Inc. v.
Citibank, 160 F.3d 97, 105 (2d Cir. 1998)
(declining to consider claim of
assignment that was not raised in
pleadings); Insurance Co. of N. Am. v.
Moore, 783 F.2d 1326, 1327-28 (9th Cir.
1986) (per curiam) (declining to award
relief available only under an unplead
cause of action).

We explained in Part II.A that
Campania’s answer admitted the allegation
that it hired Rooks to defend MRSI
against the products liability suit filed
against MRSI in Illinois state court.
(Doc. No. 8 para. 1.) Neither in response
to Rooks’s complaint nor as part of its
affirmative defense did Campania suggest
that it was CGI’s agent. Furthermore,
when Campania sought to amend its answer
and include various agency theories, the
motion was properly denied as untimely
and prejudicial. At trial, however,
Campania’s attorneys asked questions of
several witnesses designed to demonstrate
that the Rooks law firm knew or should
have known that Campania was CGI’s agent
for purposes of retaining counsel for
CGI’s insureds. (Tr. 24-25.) Because such
evidence was in the record, Campania
argues that the trial court should have
found that Rooks was required to collect
its fees from CGI. See Vander Wagen Bros.
v. Barnes, 15 Ill. App.3d 550, 553-54
(1st Dist. 1973) (holding that principal
may be liable for contracts signed by
agent if principal’s identity is
disclosed).

We cannot accept Campania’s
characterization of the record, for while
the district judge acknowledged that
certain statements about CGI’s hiring of
Campania "crept into the statements and
arguments of counsel, as well as some of
the questioning of witnesses," it is
universally known that statements of
attorneys are not evidence. Furthermore,
the trial judge properly ruled that
Campania could not rely on any evidence
in order to establish an agency relation
ship with CGI because Campania failed to
raise such an affirmative defense in its
answer. (Tr. 150-51.) Thus, the issue of
agency was not properly before the court,
and the trial judge correctly refused to
consider any evidence submitted on this
front. Grain Traders, 160 F.3d at 905.

C. Prejudgment Interest

The final question is whether the court
erred when finding that Rooks was
entitled to prejudgment interest under
the Illinois Interest Act, 815 ILCS 205/2
(1998), in addition to contractual
damages. Whether to award interest on
liquidated damages involves the
application of law to fact. Thus, we have
reviewed the trial judge’s decision for
clear error. Arnhold, 284 F.3d at 699.
Campania argues that such an award was
improper because Campania disputed any
liability under the contract and that, as
a result, the damages were unknown until
the very date when the court entered
judgment in Rooks’s favor. We conclude
that Campania has offered no persuasive
reason for disturbing the court’s
decision.

Illinois law provides for interest on
money that becomes "due on any bond,
bill, promissory note, or other
instrument of writing." 815 ILCS 205/2
(1998). The Illinois Appellate Court
recently defined the proper application
of the statute as follows:

An instrument in writing within the
meaning of the statute is one that sets
up a creditor-debtor relationship.
Prejudgment interest will be awarded for
amounts due on an instrument in writing
if the amount was liquidated or was
easily computed. If the amount is
determinable, interest can be awarded on
money payable even when the claimed right
and the amount due require legal
ascertainment. A good-faith dispute would
preclude an award for prejudgment in
claims brought for unreasonable refusal
to pay but would not preclude an award in
a claim brought under a written
instrument.

Krantz v. Chessick, 282 Ill. App.3d 322,
327-28 (1st Dist. 1996) (internal
citations omitted).

In support of its argument that
attorney’s fees are unliquidated,
Campania cites Wildman, Harrold for the
well-known proposition that "Rule 1.5 of
the Illinois Rules of Professional
Conduct requires that all fees for legal
services be reasonable." 317 Ill. App.3d
at 601. Thus, the judiciary has an
obligation to determine whether legal
fees are fair and just whenever they are
challenged in a fee petition, a common
law claim of breach of contract, or an
equitable proceeding for unjust
enrichment. Id. Because of the
possibility that the invoices submitted
by an attorney may be challenged by the
client--and in some instances may be
determined to be unreasonable--Campania
believes that attorney’s fees cannot be
determined until the court rules on the
client’s challenge. For this reason,
Campania contends that interest may never
be awarded on any contract for legal
services. We disagree with Campania. We
hold that prejudgment interest may be
awarded on contracts for legal services
provided that: (1) the invoices clearly
delineated the hours and rates charged
and spent on the matter; and (2) the
court finds that the requested fee is
reasonable.
 Courts applying Illinois law have
awarded prejudgment interest when the
entire amount detailed in the invoices
was found to be reasonable. See, e.g.,
Medcom Holding Co. v. Baxter Travenol
Labs Inc., 200 F.3d 518, 519 (7th Cir.
1999); South Bend Lathe Inc. v. Amsted
Indus. Inc., 925 F.2d 1043, 1049 (7th
Cir. 1991); Krantz, 282 Ill. App.3d at
328; Chicago Mill & Lumber Co. v.
Townsend, 203 Ill. App. 457, 1916 WL 2774
at *6 (2d Dist. 1916). In this case, the
court credited Rooks partner Frank
Rowland’s testimony that he routinely
mailed invoices to Campania’s director of
claims every one or two months, with only
minor exceptions. The court further found
that the charges were reasonable.
Campania never has claimed that Rooks
overbilled in terms of time expended or
hourly rates. Thus, Campania’s bills
accrued and were easily discernible at
the time they were incurred.

"Interest may be awarded ’although a
good faith defense exists and even where
the claimed right and the amount due
require legal ascertainment.’" Ash v.
Georgia Pac. Corp., 957 F.2d 432, 439
(7th Cir. 1992) (quoting LaGrange Metal
Prods. v. Pettibone Mulliken Corp., 106
Ill. App.3d 1046, 1054 (1st Dist. 1982)).
"Defenses and offsets do not make a sum
actually awarded less ascertainable." Id.
The extent of Campania’s liability was
uncertain only in the sense that Campania
argued that Rooks breached the contract.
We reject Campania’s argument that the
trial court clearly erred when awarding
interest in this case.

III. CONCLUSION

We are convinced that the district judge
acted within her discretion by denying
Campania’s untimely and prejudicial pre-
trial motions. After conducting a one-day
bench trial, the court also made
reasonable findings of fact and
reasonably awarded prejudgment interest
on the money due to the Rooks law firm.
The judgment of the district court is
AFFIRMED.

FOOTNOTES

/1 Under Rule 16(b)(1) of the Federal Rules of Civil
Procedure, district courts are required to issue
a scheduling order that, among other things,
"limits the time to join other parties and to
amend the pleadings." We were surprised to see
that, although the trial judge did enter a Uni-
form Scheduling Order, (Doc. No. 6), which was
later revised, (Doc. No. 13), the order failed to
delineate a deadline for amending the pleadings.
In the absence of such an order, we shall analyze
this particular issue under the rubric of Rule
15. We do insist, however, that the district
courts faithfully follow the strictures of Rule
16(b) in future cases. See also N.D. Ill. L.R.
16.1.

/2 Rooks disputes this assertion, primarily because
Campania never filed a copy of the order of
liquidation with the district court, as is cus-
tomary in proceedings involving the assets of
insolvent insurers. See, e.g., Rewerts v. Reli-
ance Ins. Co., 170 F. Supp.2d 847, 848-49 (C.D.
Ill. 2001); Reliance Nat’l Indem. Co. v. Pinnacle
Cas. Assur. Corp., 160 F. Supp.2d 1327, 1333-34
(M.D. Ala. 2001). As explained in this section,
Campania failed to satisfy the requirements of
Rule 15(a) even we give Campania the benefit of
the doubt on this point. Any remaining factual
disputes, therefore, do not effect our decision.

/3 CGI agreed to indemnify Campania for its expens-
es. At oral argument, Campania admitted that it
wished to assert its agency theories only after
learning of CGI’s bankruptcy, so as to absolve
itself of liability in the underlying lawsuit
rather than find itself waiting in line for
reimbursement along with the rest of CGI’s unse-
cured creditors. Campania might possibly have
avoided this problem if it had adopted a more
sensible pre-trial strategy and brought CGI into
the lawsuit at its inception, pursuant to Rule 14
of the Federal Rules of Civil Procedure.

/4 Campania also suffered no prejudice from the
denial of its motion because it had the opportu-
nity to introduce evidence in support of the
position that Rooks tendered substandard repre-
sentation. (Tr. 44-49, 71-75, 103-09). The court
obviously found this evidence unpersuasive,
ruling that "[t]he pleadings and credible testi-
mony explained the reasonableness of the profes-
sional work that [Rooks] provided in accordance
with its contract with the defendant for legal
services." (Tr. 153.)

/5 Campania’s briefs in support of the motion to
amend concede that it suffered no prejudice from
the court’s ruling, for Campania declared that it
intended to file the malpractice claim as a
third-party claim in the underlying suit pending
in Illinois state court. (Doc. No. 21 para. 7.)
While nothing in this record clarifies whether
Campania actually filed such a claim, the avail-
ability of an alternative forum is a factor to
consider when ruling on a motion to amend a
complaint and assert new causes of action. See 6
Wright, Miller & Kane, supra sec. 1487 at 621
("the court will consider the position of both
parties and the effect the request will have on
them").

/6 Although Campania states in one sentence of its
opening brief that the court’s findings "are not
supported by the evidence," (Br. at 21), Campania
devotes the remaining portion of the brief argu-
ing questions of agency law. Perfunctory and
undeveloped arguments are waived, especially
when, as here, "a party fails to develop the
factual basis of a claim on appeal and, instead,
merely draws and relies upon bare conclusions."
Spath v. Hayes Wheels Int’l-Ind. Inc., 211 F.3d
392, 397 (7th Cir. 2000).