Filing 339

OPINION. Signed by Magistrate Judge Joseph A. Dickson on 9/5/14. (gmd, )

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ·--viNcENT-i-uiiiiiNo~-cili?i?--sTERN~-a~d--1 NOEL SPIEGEL, individually and on behalf of all others similarly situated, 1 Civil Action No.: 09-cv-5582 (JLL-JAD) Plaintiffs, v. OPINION MERCEDES-BENZ USA, LLC., Defendant. JOSEPH A. DICKSON, U.S.M.J. This matter comes before the Court upon motion by plaintiffs Vincent Luppino, Cliff St and Noel Spiegel, individually and on behalf of all others similarly situated, (collectiv ly "Plaintiffs"), for leave to file their sixth amended complaint pursuant to Fed. R. Civ. P. 15(a) ( e "Motion to Amend") and add an implied breach of merchantability claim. (Prop. Amend. Com 1., ECF No. 328-2, ~~ 191-200). Pursuant to Rule 78 of the Federal Rules of Civil Procedure, no argument was heard. Upon consideration of the parties' submissions, and for the reasons sta below, Plaintiffs' Motion to Amend is GRANTED. al I. BACKGROUND Plaintiffs, Vincent Luppino, Cliff Stem and John Casiero filed a Complaint agai t Defendant Mercedes-Benz USA LLC ("MBUSA") on November 2, 2009, alleging violations f theNew Jersey Consumer Fraud Act ("CF A"), 1 Breach of Express Warranty and Breach ofWritt n Warranty pursuant to the Magnuson-Moss Warranty Act. 2 (Compl., ECF No. 1, at 23-26). January 27, 2010, Plaintiffs filed an Amended Complaint as a matter of right, 3 supplementing th ·r allegations with more specific facts. (Am. Compl., ECF No. 16). Defendant MBUSA file a motion to dismiss on February 16, 2010, pursuant to Federal Rule of Civil Procedure 12(b) (hereinafter "First Motion to Dismiss"). (ECF No. 17). The Honorable Dennis M. Cavanau , U.S.D.J., granted the First Motion to Dismiss in part on August 13, 2010, and dismissed with t prejudice, the warranty counts (Counts I and II) and the "affirmative misrepresentatio " component of the CFA count (Count III) of the Amended Complaint. (ECF Nos. 30 and 3 ). However, Plaintiffs were given leave to amend their pleadings to cure the defects found by e Court. (ECF No. 31). Accordingly, Plaintiffs filed the Second Amended Class Action Complaint on Septem r 24, 2010. (Second Am. Compl., ECF No. 37). Defendant responded, on October 26, 2010, filing its Answer and a motion to dismiss (hereinafter "Second Motion to Dismiss") the warr counts and one portion of the CFA count plead by Plaintiffs Cliff Stem ("Stem") and John Casi o ("Casiero"). (See ECF Nos. 40 and 41). Judge Cavanaugh granted the Second Motion to Dism ss in part by dismissing the warranty counts plead by Plaintiffs, Stem and Casiero (Counts I and I) 1 N.J. Stat. Ann. § 56:8-1 et seq. 15 U.S.C.A. § 2301 et seq. 3 Pursuant to Federal Rule of Civil Procedure 15(a)(l)(B), Plaintiffs' Amended Complaint was filed 21 days a er service of Defendant's 12(b) and 12(e) motion. (ECF No. 13). 2 2 and denied the motion in part by allowing the CF A count to go forward. (See ECF Nos. 66 67). On January 31, 2011, this Court entered a Pre-Trial Scheduling Order, which provided t fact discovery would remain open until December 20, 2011 and the last day for filing motions o add parties or amend the pleadings would be September 30, 2011. (ECF No. 50). The Pre-T 1 Scheduling Order was further amended on May 11, 2011, which set December 2, 2011 4 as then date by which the parties may move to amend the Complaint and add parties. (ECF No. 65). On the eve of the deadline for filing motions to add parties or amend the pleading December 2, 2011 - Plaintiffs attempted to file a Third Amended Complaint without first seeki g leave to amend. (ECF No. 95). This Court struck the improperly filed Third Amended Compla t and gave Plaintiffs until December 9, 2011 to file a motion for leave to amend. (See ECF No. 9 ). Plaintiffs sought to add Daimler AG ("Daimler") as a Defendant and Noel J. Spiegel ("Spiege ') as a Plaintiffto this action and sought to supplement the Complaint with additional facts, consisti g of consumer complaints filed with the National Highway Transportation Safety Administrati n ("NHTSA") and online consumer complaints. (ECF No. 117). This Court thereafter gran d Plaintiffs' motion for leave to file a Third Amended Complaint and Plaintiffs filed their Th d Amended Complaint on March 14,2012. (Third Am. Compl., ECF No. 118). Defendants Daimler and MBUSA filed an omnibus motion to dismiss (hereinafter "Th Motion to Dismiss") the Third Amended Complaint on February 22, 2013. (ECF No. 223). Ju e Cavanaugh, in a November 12, 2013 Opinion, granted the Third Motion to Dismiss in part dismissing Plaintiffs' claims against Daimler, granting Plaintiffs leave to amend the Th Amended Complaint, and denied the motion in part by refusing to dismiss Plaintiffs' claim 4 r The Order states in relevant part that "any motion to amend pleadings and/or add new parties must be filed no 1 er than December 2, 2011." (ECF No. 65). 3 lack of standing. (ECF Nos. 295 and 296). Plaintiffs subsequently filed a Fourth Amend d Complaint, on December 9, 2013, adding new claims- including one for the breach of the impli d warranty of merchantability - against Daimler and additional facts regarding Daimler MBUSA. (Fourth Am. Compl., ECF No. 297). The parties then agreed to dismiss with prejud' e all claims against Daimler. (ECF No. 317). The Pre-Trial Scheduling Order was again amended on March 12, 2014 to provide that :ti discovery had ended and any remaining limited discovery would be completed in accordance w the appointed Special Master. (ECF No. 321). On March 17,2014, the Honorable Jose L. Linar s, U.S.D.J., ordered that Plaintiffs file a Fifth Amended Complaint that omits all claims agai st Daimler. (ECF No. 323). Judge Linares' Order also provided that "to the extent Plaintiffs w h to assert any new causes of action not previously set forth in the Third Amended Complai t, Plaintiffs shall file a formal motion to amend pursuant to Federal Rule of Civil Procedure 15(a ." (Id.). Plaintiffs filed their Fifth Amended Complaint on April 21, 2014, concurrently with instant Motion to Amend. This Motion to Amend, filed on April 21, 2014, seeks to amend the Fifth Amen Complaint by adding a single count alleging that MBUSA breached the implied warranty f merchantability. 5 (Prop. Amend. Compl., ECF No. 328-2, W 191-200). In support, Plaintiffs n te that this amendment "does not inject any new factual allegations or substantially changed le al theories into the case" and that no additional discovery would be required. (Pl. Br., ECF No. 3 1, at 11, 12). Plaintiffs further claim that "the importance of adding [this] claim" only crystalli recently when they received and inspected a large supply of wheels from New Jersey dealershi 5 N.J. 6 Stat. Ann.§ 12a:2-314, et seq. This argument was made in response to Defendant's argument that Plaintiff must meet the good cause standar of Fed. R. Civ. P. 16 and cannot. Plaintiffs' Reply Brief asserted that new discovery consisting of recent examinatio of 6 4 (Pl. Reply Br., ECF 335, at 6). Defendant opposes Plaintiffs' Motion on the grounds that Plainti s fail to comply with the requisite "good cause" standard under Federal Rule of Civil Procedure 6 and that even if the Court reaches a Rule 15 analysis, Plaintiffs' Motion to Amend should be deni d due to prejudicial delay, futility and undue delay in the proceedings. (Def. Br., ECF No. 334, t 10-22). II. STANDARD OF REVIEW Federal Rule of Civil Procedure 15 governs motions to amend or supplement proceedin s. Rule 15(a) provides that after a responsive pleading has been filed: [A] party may amend its pleading only with the opposing party's written consent or the courts leave. The court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a)(2). The grant or denial ofleave to amend under Rule 15(a) is a matter "committed to the so d discretion of the district court." Arab African Int'l Bank v. Epstein, 10 F.3d 168, 174 (3d 1993). The Third Circuit adopted a liberal approach to the amendment of pleadings under R le 15 to ensure that "a particular claim will be decided on the merits rather than on technicaliti " Dole v. Arco Chern. Co., 921 F .2d 484, 487 (3d Cir. 1990) (internal citation omitted). The bur n is generally on the party opposing the amendment to demonstrate why the amendment should ot be permitted. Foman v. Davis, 371 U.S. 178 (1962). Leave to amend a pleading may be denied where the court finds: (1) undue delay; (2) un e prejudice to the non-moving party; (3) bad faith or dilatory motive; or (4) futility of amendm wheels by Plaintiffs' Expert, has generated the newly proposed breach of implied merchantability claim. (Reply, No. 335 at 4-5). 5 F Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). A proposed amendment may also be deni based on futility if it "would fail to state a claim upon which relief could be granted." Shane Fauver, 213 F.3d at 115. Thus, "[i]n assessing 'futility' the District Court applies the s standard oflegal sufficiency as applies under Rule 12(b)(6)." Id. To survive dismissal under R e 12(b)(6), a complaint "must contain sufficient factual matter accepted as true to 'state a claim o relief that is plausible on its face."' Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). III. DISCUSSION The first question to be answered is whether the good cause standard under Rule 16 is applicable as Defendant argues. It certainly would have been had Judge Linares not gran Plaintiffs an additional opportunity to file a motion to amend. (See ECF No. 323). In exercis· inherent authority to control his docket, Judge Linares offered Plaintiffs' the chance to file a moti n and assert new claims against MBUSA, while ensuring that previously barred claims were not ·n the pleadings. (See id.) As stated, Judge Linares permitted Plaintiffs to file this motion "pursu to Federal Rule of Civil Procedure 15(a)." (ECF No. 323). In short, Judge Linares amended e (often amended) scheduling order to provide more time for a motion to amend. Plaintiffs exerci their rights under Judge Linares' Order on April 21, 2014, thirty-five days later. (See ECF 328). The motion cannot therefore be seriously considered untimely and a Rule 16 analysis is t necessary. 7 Thus, the Court applies a Rule 15 analysis and will deny leave to amend only wh e it finds: (1) undue delay; (2) undue prejudice to the non-moving party; (3) bad faith or dilat motive; or (4) futility of amendment. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). i. Fed. R. Civ. P. 15: Undue Delay and Undue Prejudice 7 The Court will therefore not address Plaintiffs' assertion that new discovery consisting of recent examinatio of wheels by Plaintiffs' Expert has generated the newly proposed breach of implied merchantability claim. (Reply, F No. 335 at 4-5). 6 The issues of undue delay and undue prejudice overlap somewhat, as delay genera y cannot be undue unless it has caused some prejudice to the non-moving party. See, ~. Adams Gould, Inc., 739 F.2d 858, 868 (3d Cir.1984). The analyses, however, are distinct, as "[t] e question of undue delay ... requires that we focus on the plaintiffs' motives for not amending th ir complaint to assert this claim earlier; [while] the issue of prejudice requires that we focus on effect on the defendants." Id. In evaluating motions to amend, the Third Circuit has applied following standard: "The passage of time, without more, does not require that a motion to am a complaint be denied; however, at some point, the delay will become undue, placing unwarranted burden on the court, or will become prejudicial, placing an unfair burden on opposing party." Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984)(internal citations quotations omitted). While Plaintiffs were certainly delayed in adding the claim at issue h Defendant fails to demonstrate how granting Plaintiffs' Proposed Amended Complaint is und 1 delayed and thus prejudicial under Rule 15(a). Defendant argues that Plaintiffs wasted previous opportunities to amend the complaint d that waiting ''until the eve of their class certification deadline" qualifies as undue delay under R le 15. (Def. Br., ECF No. 334, at 18-19). The Court finds Defendant's argument ultimat ly unpersuasive. Although Defendant argues that the passage of two years justifies a finding of un e delay, it fails to point to any resulting prejudicial burden. 8 Defendant asserts that a Court sho d deny "a motion for leave to amend as undue when the movant knew of an available theory, waited over two years to seek leave to assert that theory." (Def. Br., ECF No. 334, at 18). 8 Defendant argues that proceedings would be further delayed if Plaintiffs' motion is granted because Defendant w ld be "forced to file an eighth motion to dismiss." (Def. Br., ECF No. 334 at 17). Defendant's decision to mov to dismiss should not be considered as either Plaintiffs' delay or prejudice to Defendant. It is merely the exercise fa right provided by the Federal Rules of Civil Procedure. 7 Court agrees that Plaintiff could have asserted this theory against the Defendant at an earlier st e in the litigation; however, despite this head-scratching delay, there is no prejudice to the Defend and no real burden on the Court. It is well established that "[P]rejudice to the non-moving party is the touchstone for de 1 of an amendment." United States Fire Insurance Co. v. Kelman Bottles, No. 12-2270, 2013 5303261, at *8 (3d Cir. Sept. 23, 2013) (internal citations and quotations omitted). The Co mindful that "[F]rustrated expectations [do not] constitute undue prejudice sufficient to overco e the Rule 15(a) right to amend a pleading." See Long v. Wilson, 393 F. 3d 390,400 (3d Cir. 20 ) (internal citations and quotations omitted). In determining what constitutes unfair prejudice, co consider whether allowing the amended pleading would (1) require the non-moving party o expend significant resources to conduct discovery and prepare for trial, (2) significantly de resolution of the dispute, or (3) prevent a party from bringing a timely action in anot er jurisdiction. Id. (internal citations omitted). 9 Moreover, the district court has held that where" e proposed amended complaint contains substantially the same allegations as the origi [c]omplaint. .. the amendment will not further delay resolution ofth[e] case." Decosta v. En 1i h, No. 11-2651 MAH, 2012 WL 528760, at *12 (D.N.J. Feb. 16, 2012). Further, as discuss d, Plaintiffs represent that "no additional discovery would be required from either side," (Pl. Br, E No. 328-1, at 12), and in the absence of extensive additional discovery, this delay is in no unduly prejudice. Generally, courts have not found unfair prejudice when a party moves to amend w discovery is still open. See, ~ Transweb v. 3M Innovative Properties Co., et al., No. 4413 (FSH), 2011 WL 2181189, at *9 (D.N.J. June 1, 2011) (finding no unfair prejudice wh re 9 The third factor is inapplicable to this analysis. 8 schedule would not be impacted and several months of fact discovery remained); Leibholz Hariri and Celgene Corn .. No. 05-5148 (DRD), 2007 WL 2177386, at *6 (D.N.J. July 27, 20 (granting amendment where discovery was still open and final pretrial conference had not b n set, among other factors). Thus, in contrast, "[i]fthe proposed amendment requires the reopeni of discovery, the prejudice to the non-moving party will be considered greater than if the propo amendment presents only a new issue oflaw." Voilas, 173 F.R.D. at 396 (internal citations quotations omitted). Here, Plaintiff has represented to the Court that no additional discovery be needed to add this claim for implied breach of merchantability and thus no prejudice result. 10 ii. Futility Defendant asserts that Plaintiffs' motion for leave to amend is futile and should be den for failure to state a plausible claim for breach of the implied warranty of merchantability. ( Br., ECF No. 334, at 20). Defendant contends that because "the vehicles at issue served t ordinary purpose, i.e., transportation," Plaintiffs' claim for breach of the implied warranty f merchantability fails under a futility analysis. (Def. Br., ECF No. 334, at 21). An impl warranty of merchantability is implied in a contract for sale and warrants that the goods "are t for the ordinary purposes for which such goods are used." N.J. Stat. Ann. § 12a:2-314 et seq. N w Jersey Courts have held that "[i]n the context of a car, this warranty is satisfied when the vehi le provides safe and reliable transportation." Greene v. BMW ofN. Am., No. 11-04220, 2012 5986457, at *2 (quoting Green v. G.M.C., No. A-2831-01T-5, 2003 WL 21730592 (N.J. Su r. Ct. App. Div. July 10, 2003) (emphasis added)). It is important to note that a vehicle's ordin purpose is not merely "transportation" but "safe and reliable transportation." Assuming 10 The Court notes that should Plaintiffs request additional discovery on this theory, their request will be denied. 9 Plaintiffs' allegations of wheel failure under normal driving conditions are true, (Prop. Arne Compl., ECF No. 328-2, ~ 2), the issue whether this (potential) finding supports a theory ofbre of implied warranty of merchantability is better left after a full explanation of the arguments. IV. CONCLUSION For the foregoing reasons, Plaintiffs' motion for leave to file an Amended Complaint, (E F No. 328), is GRANTED. Jos~ cc: Hon. Jose L. Linares, U.S.D.J. 10

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