Lehman Brothers Holdings, Inc. v. PrimeLending

Filing 73

ORDER granting 71 Unopposed Motion of Defendant Primelending to Amend Its Answer. The Court accepts for filing Defendant's Amended Answer and Counterclaim [Docket No. 71-2], by Magistrate Judge Kristen L. Mix on 12/30/09.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 09-cv-00212-PAB-KLM LEHMAN BROTHERS HOLDINGS, INC., Plaintiff, v. PRIMELENDING, a PlainsCapital Company, Defendant. _____________________________________________________________________ ORDER _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on an Unopposed Motion of Defendant Primelending to Amend Its Answer [Docket No. 71; Filed December 23, 2009] (the "Motion"). Defendant seeks leave to amend its answer with three additional defenses: no actual damages, impossibility of performance, and ratification. Fed. R. Civ. P. 15(a) provides for liberal amendment of pleadings. Leave to amend is discretionary with the court. Foman v. Davis, 371 U.S. 178, 182 (1962); Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir. 1998). Amendment under the rule has been freely granted. Castleglenn, Inc. v. Resolution Trust Company, 984 F.2d 1571 (10th Cir. 1993) (internal citations omitted). "If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman, 371 U.S. at 182. "Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or

futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). The Court finds that there is no basis for denying Defendant's motion to amend. There has not been undue delay or undue prejudice. The discovery cut-off is March 30, 2010. Plaintiff does not object to the Motion. Accordingly, IT IS HEREBY ORDERED that the Motion is GRANTED. IT IS FURTHER ORDERED that the Court accepts for filing Defendant's Amended Answer and Counterclaim [Docket No. 71-2].

Dated: December 30, 2009 BY THE COURT:

__s/ Kristen L. Mix_________________ United States Magistrate Judge