Jason Wargolet v. Roundy’s Supermarkets, Inc., Kroger Co., Inc. and Does 1-10

Summary

The United States District Court for the Eastern District of Wisconsin denied Jason Wargolet’s motion for leave to amend his breach of contract claim in a putative class action against Roundy’s Supermarkets, Inc. and Kroger Co. The court held that the plaintiff’s failure to provide pre-suit notice under Wis. Stat. § 402.607(3)(a) was not curable through post-suit notice and therefore amendment would be futile.

Holdings

1. Wisconsin Statute § 402.607(3)(a) requires a buyer asserting a breach-of-contract claim arising from the sale of goods to notify the seller of the breach before filing suit; failure to provide that notice bars the buyer's remedy.
2. Post-suit notice cannot cure the failure to provide the required pre-suit notice; therefore, amendment to add post-suit notice allegations would be futile.
3. The court would not consider arguments or evidence raised for the first time in the reply brief, including the request to add Beka Wargolet as a plaintiff.

Questions Presented

1. Whether the plaintiff should receive leave under Federal Rule of Civil Procedure 15(a)(2) to amend a breach-of-contract claim after dismissal with prejudice for failure to provide pre-suit notice.
2. Whether post-suit notice can cure a buyer's failure to provide the notice required by Wis. Stat. § 402.607(3)(a) for a breach-of-contract claim involving the sale of goods.
3. Whether arguments and a proposed additional plaintiff first raised in the reply brief should be considered.

Disposition

other