                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-3175
CHRISTINA SOLTYS and DANUTA PAUCH,
                                            Plaintiffs-Appellants,
                                v.

YVONNE COSTELLO,
                                             Defendant-Appellee.
                         ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
        No. 04 C 448—Andrew P. Rodovich, Magistrate Judge.
                         ____________
   ARGUED SEPTEMBER 21, 2007—DECIDED MARCH 25, 2008
                         ____________


 Before EASTERBROOK, Chief Judge, and KANNE and
ROVNER, Circuit Judges.
  KANNE, Circuit Judge. Christina Soltys and Danuta
Pauch were seriously injured in a car accident caused by
Yvonne Costello, who, at the time, was driving under
the influence of alcohol. Soltys and Pauch sued Costello,
who admitted liability; trial was limited to the amount of
damages owed to Soltys and Pauch. The district court
denied Soltys and Pauch’s eleventh-hour motion to
amend their complaint to add a count for punitive dam-
ages. After the jury returned its verdict, the district court
2                                                No. 06-3175

denied Soltys and Pauch’s motion for a new trial. The
district court did not abuse its discretion on either of
these issues, so we affirm.


                        I. HISTORY
    The facts of the accident underlying this case are
simple enough: in the early-morning hours of February 27,
2004, Soltys and Pauch were traveling north on U.S.
Highway 41 in Hammond, Indiana, when their vehicle
was struck by an oncoming vehicle driven by Costello.
Costello, who had been driving south on the highway,
crossed the center line and caused a head-on collision. Both
Pauch and Soltys suffered serious injuries. In a later
criminal proceeding arising out of the incident, Costello
pled guilty to driving under the influence.
   The facts of the litigation surrounding the accident, on
the other hand, are muddled and chock-full of attorney
blunders. Soltys and Pauch hired attorney Benjamin
Nwoye, who filed a complaint in federal court against
Costello in June 2004, on the basis of diversity jurisdiction.
The complaint included negligence counts, and averred
that Costello was legally intoxicated at the time of the
accident. Unfortunately for Soltys and Pauch, Nwoye
made numerous mistakes after the pleading stage of the
litigation, some of which led to the imposition of sanc-
tions against Soltys and Pauch. But Nwoye was not the
only attorney committing errors in the case. Counsel for
Costello committed a grand oversight by failing to file an
answer until nearly two years after the suit commenced.
   Part of the confusion for the attorneys on both sides
stemmed from an early (albeit routine) change of venue—
requested by Costello—from the Northern District of
Illinois to the Northern District of Indiana. According to
No. 06-3175                                               3

Nwoye, when the case was transferred he was not yet
admitted to practice in Indiana, and he could not access the
pertinent documents on the court’s electronic system.
Nwoye assumed that Costello had filed an answer, and
he proceeded with his representation of Soltys and Pauch
even though he had no knowledge of the defendant’s
position. As for Costello’s attorney, he inherited the case
from an Illinois law firm upon transfer; he, too, thought
the complaint had been answered and he proceeded
with discovery.
  Between the scheduling conference on February 2,
2005, and December 12, 2005 (the originally-scheduled
trial date), Nwoye defaulted in responding to discovery
requests. He was ordered to disclose Soltys’s and Pauch’s
medical reports, expert witnesses, and expert reports,
but failed to do so. This, in turn, affected Costello’s dis-
covery obligations; Costello filed a motion seeking an
extension of time to disclose her expert witnesses because
she was still waiting on the plaintiffs’ disclosure of the
same. In early July, the district court ordered Soltys and
Pauch to satisfy their discovery obligations within the
next two-and-a-half weeks. But the plaintiffs and Nwoye
did nothing.
  Costello forced Nwoye’s hand in October by filing a
motion to dismiss on the ground that he still had not
complied with discovery orders. Shortly thereafter,
Costello filed a motion for sanctions, again because of
Nwoye’s obstinance with respect to discovery. Consistent
with previous behavior, Nwoye did not respond to either
of these motions. The district court gave Nwoye additional
time to respond—until the end of November. But it was not
until January 2006 that Nwoye finally responded to
the pending motions. In that response, Nwoye explained
4                                                No. 06-3175

that a death in his family had kept him from complying
with the discovery schedule. However, Nwoye failed to
explain the exact dates he was away from work, why he
did not ask for an extension, or why he delayed so long in
responding to the motions.
  The district court did not dismiss the case, but it did
impose sanctions on Soltys and Pauch on January 12,
2006, for their refusal (that is, their attorney’s refusal) to
respond to discovery requests. As its sanction, the district
court excluded “all plaintiffs’ experts, expert reports,
and personal medical records from the evidence pursuant
to [Fed. R. Civ. P.] 37(b)(2) except the 43 pages [already]
produced in discovery.” Trial was set for May 30, 2006.
  In the spring of 2006—after discovery and shortly
before trial—Nwoye reviewed the court record and saw
that there was no answer. He contacted Costello’s attor-
ney and their exchange revealed to both parties that
Costello had never filed an answer. On March 24, 2006,
Nwoye filed a motion for default judgment, based on the
lack of an answer. That same day, Costello filed her
answer, in which she admitted liability for the accident.
The district court denied Nwoye’s motion for default
judgment, characterizing Costello’s failure to timely file
an answer as a “technical deficiency.”
  About a month before trial, Costello filed a motion
in limine, seeking to exclude at trial any evidence of her
conviction for driving under the influence. Her position
was that Soltys and Pauch’s complaint only
sought compensatory damages, and as such, evidence of
her conviction would be prejudicial and irrelevant. Once
again, Nwoye did not file a response to Costello’s motion.
  After the final pretrial conference, Nwoye filed a motion
to amend Soltys and Pauch’s complaint to add a claim
No. 06-3175                                                5

for punitive damages. In this motion, Nwoye opposed
Costello’s motion in limine. He argued that Costello’s
intoxication was relevant to the new claim for punitive
damages, so it should not be excluded at trial. The district
court denied Nwoye’s motion to amend, without explana-
tion, but it later explained the denial in a post-trial opin-
ion and order. The court decided that Nwoye had unduly
delayed in filing the motion to amend and that Costello
would be prejudiced if the complaint was amended just
two weeks before trial.
  At trial, Soltys and Pauch were prohibited from testi-
fying about medical expenses that had been excluded by
the January 12 sanction. Soltys and Pauch refrained from
such testimony, but Costello’s attorney referenced the
excluded evidence in his opening statement. Specifically,
Costello’s attorney told the jury: “The Court has made
several rulings before this trial about what evidence
you will hear and will not hear . . . you must suspend
that desire to have all the information because not all
the information available in this case is going to be pre-
sented to you in evidence.” Nwoye objected to this, and
the court sustained his objection. The court specifically
instructed Costello’s attorney to comment only on the
admissible evidence.
  The evidence at trial showed that Soltys and Pauch
suffered serious injuries. Pauch could not work for two
weeks due to back and leg injuries. Soltys broke both
hands and was in casts for three months. This made it
difficult for her to continue as the sole caregiver for her
child and her elderly mother. Both women had medical
expenses.
  In Costello’s closing argument, her attorney repeatedly
drew the jury’s attention to the lack of evidence produced
6                                              No. 06-3175

by Soltys and Pauch at trial. He pointed out that doctors
did not testify, that medical records were absent, and that
there was no accident reconstructionist. He called the
plaintiffs’ evidence “flimsy.” Nwoye did not object to any
of Costello’s closing statements pertaining to the lack of
evidence.
  The judge told the jury twice that attorneys’ comments
are not evidence and should not be weighed as such. The
judge instructed the jury not to consider exhibits or testi-
mony that was not admitted into evidence, and not to
consider “testimony to which an objection was sustained.”
Additionally, the jury was told not to “speculate or
draw an inference from the fact that one attorney made
such an objection.”
  After deliberation, the jury returned a $10,000 verdict
in favor of Soltys, and a $5,000 verdict for Pauch—
Costello’s attorney had suggested these amounts to the
jury, while Nwoye had argued that Soltys deserved at
least $300,000 and Pauch was due at least $100,000.
Nwoye then made a motion for a new trial based on (1) the
court’s denial of the motion to amend the complaint,
and (2) the comments of Costello’s attorney during his
opening and closing statements that related to the lack of
medical evidence. The district court denied the motion on
these two grounds, but lamented that the verdicts for
Soltys and Pauch were clearly “inadequate” and “unfair.”
The court commented that, “for some inexplicable reason,
the plaintiffs’ attorney did not request a new trial based
upon the amount of the jury verdict.”
No. 06-3175                                                7

                       II. ANALYSIS
  On appeal, Soltys and Pauch challenge the district
court’s denial of their motion to amend their complaint
to add a claim for punitive damages. They also argue
that they were denied a fair trial because of statements
made by Costello’s attorney during his opening and
closing statements, which alluded to the pretrial sanction.


A. Denial of the motion to amend the complaint
  After Costello filed her answer and admitted liability
due to her intoxication, Soltys and Pauch requested leave
to amend their complaint to add a count for willful and
wanton conduct, a prayer for punitive damages, and a
claim for property damages. In response, Costello
argued that she would be prejudiced if the the amendments
were allowed, because she had made the tactical decision
of admitting liability specifically to avoid punitive damages
and to limit the issue at trial to compensatory damages.
  As an initial matter, we note that it is unclear whether
Soltys and Pauch even needed to amend their complaint
in order to pursue punitive damages from Costello. Federal
Rule of Civil Procedure 54(c) provides that every final
judgment (other than default judgments) “should grant
the relief to which each party is entitled, even if the
party has not demanded that relief in its pleadings.” Fed.
R. Civ. P. 54(c). Thus, Rule 54(c) contemplates an award
of punitive damages if the party deserves such relief—
whether or not a claim for punitive damages appears in
the complaint. Rule 9(g), on the other hand, requires that
“[i]f an item of special damage is claimed, it must be
specifically stated” in the complaint. Fed. R. Civ. P. 9(g).
8                                                 No. 06-3175

  Our court has not squarely addressed the question of
whether punitive damages are considered “special dam-
ages,” which must be specifically pled in a complaint, but
some of our sister circuits have considered the issue. See,
e.g., Newell v. Wis. Teamsters Joint Council No. 39, No.
05-C-552, slip op. at 2-5 (E.D. Wisc. Sept. 28, 2007); see also
Bowles v. Osmose Utils. Servs., 443 F.3d 671, 675 (8th Cir.
2006); Scutieri v. Page, 808 F.2d 785, 790-93 (11th Cir. 1987);
Guillen v. Kuykendall, 470 F.2d 745, 748 (5th Cir. 1972). But
given our stance that “district courts should afford the
prevailing party the relief to which it is entitled without
regard to errors in the pleadings,” Old Republic Ins. Co. v.
Employers Reinsurance Corp., 144 F.3d 1077, 1080 (7th Cir.
1998), the fundamental legal error in this case may have
been the parties’ and the district court’s shared assumption
that a prayer for punitive damages had to appear in the
complaint in order to sustain an award of such damages.
If that assumption was mistaken, then Nwoye had
solid grounds to oppose the motion in limine that sought
to bar evidence of Costello’s intoxication at trial—the
intoxication certainly would have been relevant to Soltys’s
and Pauch’s recovery of punitive damages. But, alas,
Nwoye did not raise this challenge below or on appeal, so
we have no occasion to explore the interplay of Rule 54(c)
and Rule 9(g) with respect to punitive damages. Instead,
we will merely consider, as Nwoye asks us to, whether it
was an abuse of discretion for the district court to deny
Soltys and Pauch’s motion for leave to amend their com-
plaint.
  We review the district court’s denial of a motion for
leave to amend a complaint under the highly deferential
abuse of discretion standard. Trustmark Ins. Co. v. Gen. &
Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005).
No. 06-3175                                                9

“[T]he decision to grant or deny a motion to file an
amended pleading is a matter purely within the sound
discretion of the district court.” Brunt v. Serv. Employees
Int’l Union, 284 F.3d 715, 720 (7th Cir. 2002). We will
overturn a denial of a motion for leave to amend a com-
plaint only if the district court “abused its discretion by
refusing to grant the leave without any justifying reason.”
Id.; see also J.D. Marshall Int’l Inc. v. Redstart, Inc., 935
F.2d 815, 819 (7th Cir. 1991).
   Federal Rule of Civil Procedure 15(a) provides that if a
party is not entitled to amend a pleading as a matter of
course, it may amend “with the opposing party’s writ-
ten consent or the court’s leave.” The court “should freely
give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). “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.” Campania Mgmt. Co. v. Rooks, Pitts &
Poust, 290 F.3d 843, 848-49 (7th Cir. 2002). Delay on its
own is usually not reason enough for a court to deny a
motion to amend. Dubicz v. Commonwealth Edison Co., 377
F.3d 787, 792-93 (7th Cir. 2004); Perrian v. O’Grady, 958
F.2d 192, 194 (7th Cir. 1992). But “ ’the longer the delay,
the greater the presumption against granting leave to
amend.’ ” King v. Cooke, 26 F.3d 720, 723 (7th Cir. 1994)
(quoting Tamari v. Bache & Co., 838 F.2d 904, 908 (7th Cir.
1988)).
  The district court based its denial of the leave to amend
largely on the long delay. It explained that the amended
complaint was filed over 14 months after the original
complaint, and “after the close of discovery, the [defen-
10                                              No. 06-3175

dant’s] motion in limine admitting liability, the filing of
the final pretrial order, and the final pretrial conference.”
The trial date had already been postponed once because
of Nwoye’s conduct. Additionally, the court decided that
it “would have been unduly prejudicial to the defendant
to permit the amendment two weeks before the sched-
uled trial.”
  We agree with the district court that the motion to amend
was unduly delayed and could have further deferred
the already postponed trial. Soltys and Pauch had alleged
in their original complaint that Costello was intoxicated
at the time of the accident. With this allegation, Nwoye
could have sought to amend the complaint much earlier, to
add a punitive damages count. As far as we can tell,
Nwoye simply seemed to have “ ’mistakenly or inadver-
tently’ failed to address everything in [the] original
complaint,” Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.
2005), and “failed to act with diligence,” Campania, 290
F.3d at 848.
  “ ’Eleventh hour additions . . . [are] bound to produce
delays that burden not only the parties to the litigation
but also the judicial system and other litigants.’ ” Perrian,
958 F.2d at 195 (quoting Campbell v. Ingersoll Milling Mach.
Co., 893 F.2d 925, 927 (7th Cir. 1990). Nwoye had already
caused a postponement of the trial because of discovery
violations; we do not find that the district court abused its
discretion by denying the motion for leave to amend the
complaint. See Campania Mgmt. Co., 290 F.3d at 850.
  In light of this holding, we pause to note that we do not
credit Costello’s argument that her “tactical” choice of
admitting fault “in an effort to render the fact of her
intoxication irrelevant” would have been thwarted—and
No. 06-3175                                               11

thus Costello would have been prejudiced—had the dis-
trict court allowed Nwoye to amend the complaint.
Costello clearly was to blame for the accident; she was
convicted in a criminal proceeding of driving under the
influence. To have denied fault would have been dishonest
and, for her attorney, likely a breach of his ethical duties.
Costello’s success here had more to do with poor lawyering
by Nwoye, and possibly with a mistaken assumption
shared by all involved, than it had to do with her own,
arguably sanctionable, “tactical” maneuvering. We do not
base our decision—upholding the district court’s denial
of Soltys and Pauch’s motion to amend the complaint—
on the theory that Costello would have been unduly
prejudiced because she had to defend against a punitive-
damages count. Any prejudice she might have suffered
because of such a claim was due her. But, looking back, we
find no abuse of discretion in the district court’s denial of
Soltys and Pauch’s motion to amend their complaint on the
eve of trial.


B. Denial of the motion for a new trial
   Soltys and Pauch argue that they were denied a fair trial
because Costello’s attorney (1) alluded, in his opening
statement, to the district court’s January 12 order prohibit-
ing the plaintiffs’ submission of additional medical records,
and (2) commented on, in his closing argument, the lack
of medical evidence introduced at trial to support Soltys
and Pauch’s claims. Because of these comments, Nwoye
filed a motion for a new trial, which the district court
denied. We review the district court’s denial of a motion
for a new trial for abuse of discretion. Chlopek v. Fed. Ins.
Co., 499 F.3d 692, 699 (7th Cir. 2007).
12                                             No. 06-3175

  With respect to the statements made by Costello’s
attorney in his opening statement, the district court agreed
that it was improper for the attorney to have brought
attention to the discovery defects, but decided that the
misconduct was not prejudicial to Soltys and Pauch. Any
harm that may have occurred because of the opening
statements—suggesting that some evidence had been
excluded by the judge—was undone when the court
sustained Nwoye’s objection and admonished Costello’s
attorney to stick to the admissible evidence. See Miksis v.
Howard, 106 F.3d 754, 764 (7th Cir. 1997). The court’s
instructions to the jury to disregard issues for which
objections had been sustained likewise negated any
possible prejudice to Soltys and Pauch. See Jones v. Lincoln
Elec. Co., 188 F.3d 709, 732 (7th Cir. 1999) (“Moreover,
any potential prejudice to [plaintiff] by defense counsel’s
argument . . . was lessened considerably by the fact that
the district court instructed the jury that statements and
arguments made by counsel were not to be considered
evidence and that the jury should base its verdict solely
on the evidence admitted in the case. We have repeatedly
found that jury instructions of this sort mitigate any
prejudicial effect of potentially improper remarks made
by counsel . . . .”); see also Whiting v. Westray, 294 F.3d
943, 946 (7th Cir. 2002).
  We presume that juries follow the instructions given
them by the court. Chlopek, 499 F.3d at 702. There is no
indication here that the jury was unable or unwilling to
follow the court’s instructions to refrain from treating
the testimony of the attorneys as evidence, and to avoid
drawing inferences from sustained objections. The opening
statements made by Costello’s attorney, though improper,
were, nonetheless, not prejudicial.
No. 06-3175                                               13

  Soltys and Pauch also challenge the statements made by
Costello’s attorney in his closing argument. However,
Nwoye did not object to these statements at the time,
so this part of Soltys and Pauch’s challenge is waived.
Miksis, 106 F.3d at 764 (“Because defendants did not object
to any other comments, they did not preserve them
for appellate review.”); Gonzalez v. Volvo of Am. Corp., 752
F.2d 295, 298 (7th Cir 1985).
   Even had Nwoye tendered an appropriate objection
when the statements were made, the challenge would
still fail because the statements were not improper. Unlike
Costello’s attorney’s improper comments during his
opening statement, the closing-argument comments
pointed to the lack of evidence offered by Soltys and Pauch,
without suggesting why the evidence was not offered (that
is, because of a discovery sanction). Attorneys have more
leeway in closing arguments to suggest inferences based on
the evidence, highlight weaknesses in the opponent’s case,
and emphasize strengths in their own case. Jones, 188 F.3d
at 731. In his closing argument, Costello’s attorney pointed
out the weaknesses in Soltys and Pauch’s case in a manner
that did not draw attention to the court’s sanction. The
comments, therefore, were not improper, and would not
warrant a new trial for Soltys and Pauch.
   Finally, even if the statements made in closing had
been improper, Soltys and Pauch would still not be en-
titled to a new trial. “ ’This court has repeatedly explained
that improper comments during closing argument rarely
rise to the level of reversible error.’ ” Miksis, 106 F.3d at
764 (quoting Doe v. Johnson, 52 F.3d 1448, 1465 (7th Cir.
1995)). As is the case with the improper statements made
in the opening statement, curative instructions to the
jury mitigate harm that may otherwise have resulted
14                                               No. 06-3175

from improper comments during closing argument. See
Jones, 188 F.3d at 732. The judge twice instructed the jury
that attorney statements did not constitute evidence; we
presume that the jury obeyed the court, see Chlopek, 499
F.3d at 702.
  Because the district court remedied any harm done by
Costello’s attorney in the opening statement with curative
instructions to the jury, and because the statements by
Costello’s attorney in the closing argument were not
improper, we do not find an abuse of discretion in the
district court’s denial of Soltys and Pauch’s motion for
a new trial.
  The outcome of this case seems unfortunate, as the
district court noted. Two individuals were hit by an
intoxicated driver and suffered serious injuries but
were denied proper relief because their attorney did not
comply with discovery orders and did not raise valid
legal issues that would likely have led to adequate relief
for his clients. But, being constrained as we are to review
only the issues properly before us on appeal, we cannot
remedy this situation. As the district court noted, “any
blame lies with the plaintiffs’ attorney.” If Soltys and Pauch
have any hope of securing additional relief, they must
look to Benjamin Nwoye.


                     III. CONCLUSION
  The judgment of the district court is AFFIRMED.




                    USCA-02-C-0072—3-25-08
