SMITH et al v. HONEYWELL INTERNATIONAL, INC. et al

Filing 258

OPINION & ORDER granting 221 Motion for Leave to File an Amended Complaint; Denying Pltf's request to change the property ownership timeframe defining the pltf classes; Pltfs should file their amended complaint by 1/30/14. Signed by Magistrate Judge Joseph A. Dickson on 1/27/14. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LATRICIA SMITH, MATTIE
HALLEY, and BARRY WEIN, et al.,

Civil Action No. 10-CV-03345-ES-JAD

Plaintiff(s),
v.

OPINION AND ORDER

HONEYWELL INTERNATIONAL,
INC. and PPG INDUSTRIES, INC.,
Defendants.

JOSEPH A. DICKSON, U.S.M.J.
Before the Court is Plaintiffs' Motion for Leave to File Their Fourth Amended Compla ln.t
("Motion to Amend") (ECF no. 221). The Court has reviewed the parties' arguments as raised 'n
their briefs and at its October 18, 2013 status conference. For the reasons detailed below, the Co nt
GRANTS Plaintiffs' request to amend their complaint to re-define the plaintiff classes and nru 1e
new class representatives, and DENIES Plaintiffs' request to change the dates of prope y
ownership defining the plaintiff classes.

I.

BACKGROUND AND PROCEDURAL HISTORY
This class action arises from Defendants' alleged failure to properly handle, store,

dispose of, and remediate toxic waste generated by their chromate production facilities in J erse
City, New Jersey. See Amended Class Action Complaint and Jury Demand (ECF no. 124).
According to the complaint, Defendants Honeywell International, Inc. ("Honeywell") and PPG
Industries, Inc. ("PPG") are successors to companies that owned and operated chromate
1

production facilities. During their operations, Defendants allegedly generated toxic and
hazardous chromium ore processing residue ("COPR") waste at their chromate production
facilities. Defendants allegedly distributed a portion of the COPR waste to be used as fill
material for construction and development projects in Jersey City, and removed COPR waste t
COPR sites. According to the complaint, Defendants' operation of these facilities and dumpin
of hazardous waste in Jersey City exposed Plaintiffs and/or their properties to hazardous
substances.
On July 14, 2011, the Court (Arleo, M.J.) entered its first 1 scheduling order for the cas
providing that "[a]ny motion to amend the pleadings as to class issues must be filed no later th
October 17, 2011." See July 14, 2011 Scheduling Order (hereinafter "2011 Scheduling Order'
(ECF no. 64). The Court subsequently extended that deadline to January 12, 2012,2 and
Plaintiffs moved to amend their complaint on January 23, 2012 3 (ECF no. 75). Subsequently,

e

parties conferred on the proposed amended complaint, and Plaintiffs agreed to change their
proposed complaint to address Defendants' argument that it was deficient. See Consent Order
dated March 2, 2012 (ECF no. 81). On March 12, 2012, Plaintiffs moved for leave to file a
second motion to amend (ECF no. 82), with Defendants consenting to the filing of the motion
(ECF no. 80). 4

1

This scheduling order was amended on July 26, 2011 to correct a clerical error. The deadline for motions to am d
remained the same.
2
The parties jointly requested, and obtained an extension of this deadline to November 17, 2011 (ECF no. 69);
December 16,2011 (ECF no. 71); and January 12,2012 (ECF no. 73).
3
Although Defendants now complain that Plaintiffs filed their January 23, 2012 motion 11 days late, Defendants id
not protest at the time in their opposition papers (See ECF nos. 77 and 78).
4
The parties agreed to allow the Court to deny the January 2012 motion to amend without prejudice in order to
reconcile the docket to allow for the new motion to amend. See Order, dated March 28, 2012 (ECF no. 87).

2

On May 14,2012, the Court (Waldor, M.J.) held an in-person status conference during
which the Court discussed with counsel the March 12, 2012 motion for leave to amend. (ECF
no. 117). Plaintiffs agreed to withdraw their motion and file a new motion to amend by May 2 ,
2012 that refined the issues in the complaint, and Defendants did not oppose the new
amendment. (ECF nos. 111, 113-115, 117, 120, 121). On June 14, 2012, the Court granted th
Motion to Amend (ECF no. 122), and Plaintiffs filed their amended complaint on June 20, 201
See Amended Class Action Complaint and Jury Demand (ECF no. 124).
Shortly after the May 14, 2012 status conference, the Court entered a scheduling order
that "replac[ed] the July 26, 2011 Amended Pretrial Scheduling Order." See May 16, 2012
Scheduling Order (hereinafter "2012 Scheduling Order") (ECF no. 112) (emphasis added). Th
2012 replacement scheduling order provided new deadlines for discovery and other items but

d

not provide a deadline for motions to amend. At the time the Court entered this scheduling
order, the Court was expecting Plaintiffs to file a new motion to amend, which they filed on M y
23, 2013. (ECF nos. 113, 117, 119). In the 2012 Scheduling Order, the Court provided that
discovery would "remain open until 6 months from the date the Court issues its order regardin
Plaintiffs' Motion for Leave to File Amended Class Action Complaint and Jury Demand" (EC
no. 112). Because the Court issued its Order on the motion to amend on June 14, 2012,
discovery would remain open until December 14, 2012.
On April3, 2013, the parties submitted a joint status update to the Court (Mannion, M. ),
indicating that the 2012 Scheduling Order expired and the parties were still conducting
discovery. 5 See Parties' Joint Corrected Letter Itemizing Discovery Issues (ECF no. 189).

5

The parties cited several discovery disputes that awaited resolution, including Plaintiffs' pending Motion to
Compel (ECF no. 189).

3

Plaintiffs indicated that they anticipated moving to amend their complaint, and although the
parties discussed that the 2012 Scheduling Order had expired, no party mentioned that the tim
for filing motions to amend expired with the 2011 Scheduling Order or any other order.
Defendants stated only that they "reserve the right to respond to and/or oppose any Motion for
Leave to Amend the Complaint." !d.
In response to the parties' status update indicating that the 2012 Scheduling Order had
expired, the Court ordered the parties to submit a proposed new scheduling order. See April 9
2013 Text Order (ECF no. 192). On April19, 2013, the parties submitted a proposed schedur g
order that included a new deadline for motions to amend (ECF no. 196). After making a few
minor revisions, 6 the Court ultimately adopted and entered this scheduling order on May 21,
2013. See Order Granting Informal Motion to Amend Scheduling Order and Amended
Scheduling Order (hereinafter "2013 Scheduling Order") (ECF no. 207). The 2013 Schedulin
Order stated, in relevant part, that
for good cause having been shown, it is ... ordered that the Scheduling Order is hereby

amended as follows:

Motions to Amend or Add New Parties: Without prejudice to any argument by
Defendants that such a motion is untimely under the deadlines set by previous court
orders, any motion to amend pleadings or add new parties as to class certification
issues must be filed by June 21, 2013 and made returnable no later than 7/15/2013.
Counsel shall first seek consent for any amendment and provide Defendants with a
redlined (track changes) version of the proposed pleading no later than June 7, 2013, d
any request for leave of the Court to file a motion to amend must contain a redlined (tr ck
changes) version of the proposed pleading as an exhibit to the application.

6

The Court revised the provisions of the proposed order regarding expert reports and the upcoming telephone
conference.

4

/d. (emphasis added). In addition to providing a deadline of June 21,2013 for motions to arne

,

this 2013 Scheduling Order also provided new deadlines of December 20, 2013 for completion
of fact discovery as to class certification and June 20, 2014 for motions for class certification.
/d.

On June 14, 2013, the parties submitted a status update to the Court in advance of a Jun
19, 2013 status conference. See Parties' Joint Letter Itemizing Discovery Issues (ECF no. 216
Plaintiffs indicated that they provided Defendants a copy of the proposed amended complaint
and awaited response from Defendants on whether they would consent to the amendment by th
scheduling order deadline of June 21, 2013. /d. Defendants responded that they had not
reviewed the proposed amended complaint, but would advise Plaintiffs on whether they
consented by June 21, 2013, the scheduling order deadline for motions to amend. /d.
On June 19, 2013, the Court held a status conference, during which the Court discusse
with the parties the motion for leave to amend and the scheduling order deadline. See June 19,
2013 Status Conference Transcript, at 23 (ECF no. 220). The Court discussed that ifDefend
did not consent, it would extend the scheduling order deadline from June 21, 2013 to June 30,
2013. /d. There was no discussion that the time for motions to amend expired in another
scheduling order, or that another scheduling order controlled. No party represented to the Co
that the June 21, 2013 deadline was not an actual scheduling order deadline.
THE COURT: Is there consent to the amendment from defendants or not?
MR. KATERBERG: Your Honor, Robert Katerberg for Honeywell. We're currently
considering the proposed amended complaint. It makes some significant changes, both o
the sites included, the way the classes are constructed, and perhaps most importantly,
adds new plaintiffs, I believe drops a plaintiff or purports to drop a plaintiff. So we're i
the process of considering it, talking it over with our client, and we expect to be able t
advise plaintiffs whether we consent or not by later this week.

5

THE COURT: Okay. So I'll give defendants until Friday to tell plaintiffs whether or no
they consent. If not, I extend the time for plaintiffs to f"de their motion until -- is Jun
30th good for plaintiffs?
MR. GERMAN: That's fine, Judge, thank you.
THE COURT: Okay. So I'll issue a text order on that. So either it'll be done on consent
and you'll know that by Friday. I should say either be submitted on consent; you'll
know that Friday. Or you 'II file your motion by the 3Oth.

!d. (emphasis added).
On June 28, 2013, Plaintiffs moved to amend the operative complaint to re-define the
plaintiff classes, name new class representatives, and change the property ownership timefram
defining the plaintiff classes. See Plaintiffs' Notice of Motion for Leave to File their Fourth
Amended Complaint (ECF no. 221 ). Defendants contend that the deadline for filing motions

r

leave to file an amended complaint expired with the deadline provided in the 2011 Scheduling
Order, and that Plaintiffs fail to demonstrate good cause in failing to meet the deadline. See
Defendant Honeywell's Opposition to Plaintiffs' Motion for Leave to File Their Fourth
Amended Complaint, dated July 22, 2013 ("Defendant Honeywell's Opposition") (ECF no. 2

);

PPG's Memorandum of Law in Opposition to Plaintiffs' Motion for Leave to File Their Fourt
Amended Complaint, dated July 22, 2013 ("Defendant PPG's Opposition") (ECF no. 229).
Defendants further contend that Plaintiffs' Motion to Amend should be denied because of un£ r
prejudice, undue delay, and futility of the amendment. !d.

6

II.

DISCUSSION AND ANALYSIS

A.

Rule 16's "Good Cause" Standard
The threshold inquiry in deciding a motion to amend is whether the motion was filed

within the deadline set by the scheduling order. See White v. Smiths Detection, Inc., eta/., No.
10-478, 2013 WL 1845072, at *11 (D.N.J. April30, 2013). Ifthe motion is not filed within th
deadline, "Rule 16 requires a moving party to demonstrate good cause for its failure to comply
with the scheduling order before the trial court can consider, under Rule 15(a), the party's
motion to amend its pleading." Schwartz v. Avis Rent a Car System, LLC, No. 11-4052 (JLL),
2013 WL 2182078, at *2 (D.N.J. May 20, 2013) (internal citations and quotations omitted). If
the Court determines there is good cause, the Court will then determine whether to grant the
Motion to Amend under the standard set out in Rule 15. See id. A Rule 16 "good cause"
analysis is unnecessary where a party moved to amend its pleading within the scheduling ord
deadline. See, e.g., Watson v. Sunrise Senior Living Services, Inc., No. 10-230 (KM), 2013 W
103966, at *10 (D.N.J. Jan. 8, 2013).

1.

The Scheduling Order Deadline for Motions to Amend is not January 12,
2012.

Defendants argue that Plaintiffs' motion is late because the deadline for motions to
amend (hereinafter "amendment deadline") derives from the 2011 Scheduling Order and passe
long ago on January 12, 2012. 7 See Defendant Honeywell's Opposition, at 7 (ECF no. 228).
Defendants further argue that Plaintiffs fail to demonstrate good cause in failing to comply wi
this deadline. Plaintiffs argue that "the operative CMO [i.e., scheduling order] is that of May

7

For convenience, the Court refers to the Defendants' separate arguments as "Defendants' arguments" rather th
identifying the proponent of each argument.

7

2013," and that they filed their motion to amend within the deadline set in that scheduling ord
See Plaintiffs' Reply Brief, dated July 29, 2013, at 11 (ECF no. 230).

In advocating their position that the amendment deadline is found in the 2011 Scheduli g
Order rather than the 2013 Scheduling Order, Defendants state that there was a clause in the
2013 Scheduling Order that allowed for Defendants to make an argument, without prejudice, t at
Plaintiffs' motion to amend pleadings was untimely under deadlines set by previous court ord s
(hereinafter referred to as the ''without prejudice" clause"). 8 See 2013 Scheduling Order (EC
no. 207) ("Without prejudice to any argument by Defendants that such a motion is untimely
under the deadlines set by previous court orders, any motion to amend pleadings or add new

parties as to class certification issues must be filed by June 21, 2013") (emphasis added).
Defendants do not provide analysis on the meaning or effect of this clause. They only implici y
ask the Court to discard or ignore the amendment deadline in the 2013 Scheduling Order presumably because of this clause.
The Court finds that the deadline is not January 12,2012. The 2011 Scheduling Order
from which Defendants derive the amendment deadline is null. In fact, that 2011 Scheduling
Order was expressly replaced by the 2012 Scheduling Order. See 2012 Scheduling Order (EC
no. 112) (stating that it "replac[ed] the July 26, 2011 [] Scheduling Order."). The 2012
Scheduling Order was then amended by the 2013 Scheduling Order, which is currently the
operative scheduling order. See 2013 Scheduling Order (ECF 207) (stating that the prior
scheduling order was "hereby amended'' by the 2013 Scheduling Order) (emphasis added).

8

Honeywell's counsel also clarified, at oral argument, that Judge Mannion did not grant leave. See June 19, 201
Status Conference Transcript, at 7-8 (ECF no. 220) ("I think it a little bit obscures the record to say that Judge
Mannion granted leave. I mean, this was all contingent upon our having the ability to object to it as untimely").

8

Furthermore, the 2011 Scheduling Order was the first scheduling order that the court set in thi
case, 9 which commenced approximately three and a half years ago.

2.

Because the Motion to Amend was Timely Filed, No "Good Cause" Analys
is Necessary.

As the Court has rejected Defendants' argument that the amendment deadline is Janu
12, 2012, the Court now turns to Plaintiffs' argument that the scheduling order deadline derive
from the 2013 Scheduling Order, which provided a deadline of June 21, 2013 and was extende
by the Court to June 30, 2013. Plaintiffs argue that their motion is timely and no "good cause'
analysis is necessary because they filed their motion on June 28, 2013. However, Plaintiffs do
not discuss the effect ofthe "without prejudice" clause associated with the 2013 Scheduling
Order deadline.
The Court need not determine the effect of the ''without prejudice" clause to determine
whether it must conduct a Rule 16 "good cause" analysis. In other words, even assuming that
the ''without prejudice" clause nullified the June 21, 2013 amendment deadline, leaving the
Court with no explicit amendment deadline, the Court can still determine whether a Rule
16(b)(4) analysis is necessary. See Nissen v. Rozsa, No. 08-5563 (JLL), 2011 WL 5240833, at
*5 n. 3 (D.N.J. Oct. 31, 2011). Where a scheduling order sets no amendment deadline, courts
have looked to when discovery closes to determine whether the motion to amend is untimely
under Rule 16. See Phillips v. Greben, No. 04-5590,2006 WL 3069475, at *6-7 (D.N.J. Oct.
2006). Rule 16(b) applies to a motion to amend even when there is no scheduling order
deadline, if"any possibility to amend the pleadings would expire when discovery closed."

9

Defendants argue that the amendment deadline should be drawn from the July 26, 2011 Scheduling Order. The
Court entered its ftrst scheduling order on July 14, 2011, and amended it on July 26, 2011 to correct a clerical err
The deadline for motions to amend remained the same.

9

Nissen, 2011 WL 5240833, at *5 n.3 (citing Phillips, 2006 WL 3069475, at *6-7). In Phillips,
former Chief Judge Garrett Brown found that Rule 16(b) applied even though the scheduling
order did not set a deadline. Then-Magistrate Judge Patty Schwartz denied the plaintiff's moti n
to amend for lack of good cause, and the plaintiff appealed the order. !d. at * 1. The plaintiff
argued that no deadline for a motion to amend was set forth in the scheduling orders, and
therefore, the Rule 15(a) standard should have been applied. !d. at *5. The Court noted that
plaintiff moved to amend his complaint near the close of discovery. In affirming the magistrat
judge's application of the Rule 16 standard despite the absence of a scheduling order deadline,
the Court noted that "it was certainly clear that any possibility to amend the pleadings would
expire when discovery closed." Id. at *6.
Here, the Court finds that the motion to amend was timely filed. First, assuming that
"without prejudice" clause nullified the amendment deadline in the 2013 Scheduling Order, th
Court will look to the immediately preceding scheduling order, i.e., the 2012 Scheduling Orde
to determine ifthe amendment is untimely. 10 As happened in Phillips, the 2012 Scheduling
Order in this case did not provide an amendment deadline. Second, because the 2012 Schedul g
Order did not include an amendment deadline, the Court would normally go back to the prior
scheduling order for the deadline. Here, however, the Court cannot revive the 2011 Schedulin
Order because the 2012 Scheduling Order expressly stated that it was "replacing the July 26,
2011 Amended Pretrial Scheduling Order." See 2012 Scheduling Order (ECF no. 112). Third
although the 2012 Scheduling Order did not provide an amendment deadline, it provided for
discovery to close "6 months from the date the Court issues its Order" on the pending motion

10

Because the 2013 Scheduling Order only "amended" the 2012 Scheduling Order, if the provision for motions t
amend is struck, any provision in the 2012 scheduling order would be revived.

10

amend. See 2012 Scheduling Order (ECF no. 112). Thus, a motion to amend filed roughly six
months prior to the close of discovery, without more, would appear timely. The discovery
deadline at the time Plaintiffs moved to amend was December 20, 2013. Six months before
December 20, 2013 is June 20,2013. Therefore, the Court finds that Plaintiffs' motion to am
was timely filed. 11

3.

Even if Plaintiffs' Motion to Amend had been Untimely, Implicating "Go d
Cause" Analysis, the Court Finds that Plaintiffs Demonstrate Good Cause.

Even if "good cause" analysis were required, the Court finds that Plaintiffs demonstrat
good cause for seeking an extension of the scheduling order deadline for motions to amend.
Under Rule 16(b)(4 ), "[a] schedule may be modified only for good cause and with the judge's
consent." "[T]he fixing of time limits serves to stimulate litigants to narrow the areas ofinqui
and advocacy to those they believe are truly relevant and material." Fed. R. Civ. P. 16, Advis
Committee Notes (1983 Amendment) (internal citations and quotations omitted). Rule 16 thu
allows courts to "actively manage [the] timetable of case preparation to expedite speedy and
efficient disposition of cases." Monroe v. City ofHoboken, No. 11-2556, 2012 WL 1191177,
*5 (D.N.J. April10, 2012) (citing Newton v. A. C. & S., Inc., 918 F. 2d 1121, 1126 (3d Cir.
1990)).
"Whether good cause exists under Rule 16(b) depends upon the diligence of the p

y

seeking to modify the scheduling order." !d. at *6 (internal citations omitted). It is the mov g
party's burden to "show due diligence." Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,

11

Based on the 2012 Scheduling Order, the "constructive deadline" for motions to amend was June 20, 2013.
Although Plaintiffs filed their motion to amend on June 28, 2013, the Court fmds that the motion was timely. No
only is June 20, 2013 a constructive deadline, but Plaintiffs only filed on this date after obtaining permission fro
the Court to have several additional days to file their motion, if necessary, after Defendants notified them whethe
they would consent to the filing of the motion.

11

4

F. 3d 57, 84 (3d Cir. 2010). In assessing diligence, courts ask "whether the movant possessed, r
through the exercise of reasonable diligence should have possessed, the knowledge necess
file the motion to amend before the deadline expired." Grasso v. Consolidated Rail Corp., et

.,

No. 12-398 (KM), 2013 WL 3167761 (D.N.J. June 20, 2013), *5 (internal citations omitted).
Plaintiffs argue that they obtained voluminous new materials in discovery since they fi d
their last amended complaint, and that these materials prompted the amendment. See Joint
Letter, at 2 (ECF no. 239). They argue that they were diligent in seeking these materials, issui g
a subpoena to obtain the records of the site administrator12 and wading through 2.6 million pa s
of a rolling document production. Id. at 2-3. They point to discovery disputes that delayed
production of some of these materials. See October 18, 2013 Status Conference Transcript, at
They claim that the new discovery materials assisted their experts in identifying the areas mos
impacted by the chromate production. See Joint Letter, at 3. Additionally, they argue that the
proposed amended classes are more reflective of the location of the waste and the impact of th
waste on the surrounding community. See October 18, 2013 Status Conference Transcript, at
(ECF no. 220).
Defendants do not argue that Plaintiffs lacked diligence in reviewing discovery or that
they are seeking to delay the timetable for the case. Instead, Defendants argue that Plaintiffs £ 1
to demonstrate good cause because they do not identify new information learned during
discovery that motivated the amendments. See Defendant Honeywell's Opposition, at 10 (EC
no. 228); Joint Letter, at 3 (ECF no. 239). The Court disagrees. Plaintiffs identify several

12

Defendant PPG initially blocked the subpoena, but the parties ultimately came to an agreement regarding the
materials sought.

12

materials that they received since they filed their last complaint that informed their analysis.
They state that they received from Defendants
[N]umerous aerial photos, Production Data Sheets, operational histori s,
information concerning the status of prior and/or ongoing remedies at the chromi
Sites, information concerning breaches in Interim Remedial Measures, regulat
reports, and information concerning chromium testing and monitoring.
See Joint Letter, at 3 (ECF no. 239). Additionally, they claim that the production from the Sit

Administrator influenced their analysis of the case; they did not receive the complete producti
until May of2013, one month before they moved to amend their complaint. 13 Id. Those
materials included information about
Ongoing environmental releases of chromium from certain chromium sites, no
of meetings with NJDEP concerning a wide array of chromium remediation issu
notes of discussions with technical experts, results of residential inspections for
presence of chromium, and a substantial assortment of documents bearing
residents' fears and concerns.

s
s,
e
n

Id. Plaintiffs are not required to divulge to Defendants the analysis they conducted of the 2.6

million pages, or the specific documents their attorneys found that informed their analysis, as
such information may implicate attorney work product doctrine. Plaintiffs' specific
identification of materials is sufficient.
The Court finds that Plaintiffs have met their burden of demonstrating good cause.
Plaintiffs were diligent in obtaining discovery and in reviewing the new discovery materials,
they moved to amend their complaint promptly after receiving and analyzing the materials.
Furthermore, the Court finds that this amendment will streamline and simplify the case. Whil

13

At the October 18, 2013 status conference, Plaintiffs also discussed that they obtained "internal studies that
Honeywell did that demonstrate that chromium blowing off of these sites migrates into these class areas." See
October 18, 2013 Status Conference Transcript, at 14 (ECF no. 237). Additionally, they discussed receiving the
"results of the questionnaires that PPG's public relations staff and the independent site administrator had in its til ,"
maps, environmental data, and information about the chemical composition of the waste. Id. at 15-16.

13

this result does not factor into the Court's "good cause" analysis, the Court notes that such a
result is consistent with Rule 16's purpose of"stimulat[ing] litigants to narrow the areas of
inquiry and advocacy to those they believe are truly relevant and material." See Fed. R. Civ. F
16, Advisory Committee Notes (1983 Amendment) (internal citations and quotations omitted)

B.

Amendment Under Rule 15
Federal Rule of Civil Procedure 15(a) governs requests for leave to amend, allowing ar

amendment either through the court's leave or through obtaining the opposing party's written
consent. Under the liberal rule, the Court must "freely give leave when justice so requires."
Fed. R. Civ. P. 15(a)(2); see also Wright & Miller section 1484, at 676 ("Subdivision (a)(2)
encourages the court to look favorably on requests to amend."). This ensures that "a particulru
claim will be decided on the merits rather than on technicalities." Dole v. A reo Chem. Co., 92
F .2d 484, 487 (3d Cir. 1990) (internal citation omitted); see also Sabatino v. Union Township,
No., 2013 WL 1622306, at *6 (D.N.J. April15, 2013) (internal citations omitted) (discussing
that "if the underlying facts relied upon by a party might be a proper subject of relief, that part
should have the opportunity to test its claims on the merits.").
The decision to grant or deny leave to amend under Rule 15(a) is "committed to the
sound discretion ofthe district court." Arab African Int'l Bankv. Epstein, 10 F.3d 168, 174 (3
Cir. 1993). While courts have broad discretion to decide motions to amend, they are to "heed
Rule 15(a)'s mandate that amendments are to be granted freely in the interests of justice." Voi as

et al. v. General Motors Corp., et al., 173 F.R.D. 389, 396 (D.N.J. 1997) (internal citations an<
quotations omitted). In the absence of unfair prejudice, futility of amendment, undue delay, ba d

14

faith, or dilatory motive, the court must grant a request for leave to amend. Grayson v. Mayvie

State Hosp., 292 F. 3d 103, 108 (3d Cir. 2002); see also Arthur v. Maersk, Inc., 434 F. 3d 196,
204 (3d Cir. 2006) (stating that generally, leave to amend should be granted ''unless equitable
considerations render it otherwise unjust."). This "liberal amendment philosophy limits the
district court's discretion to deny leave to amend." Avatar Business Connection Inc., v. Uni-

Marts. Inc., No. 04-1866 (June 30, 2006), at *2 (allowing certain amendments even though
plaintiff moved for leave to file on the eve of oral argument on motions for summary judgment
The non-moving party has the burden of demonstrating substantial or undue prejudice. Hey!

Peterson International, Inc. v. F.D. Rich Housing, Inc, 663 F. 2d 419, 426 (3d Cir. 1981).
1.

Unfair Prejudice

"[P]rejudice to the non-moving party is the touchstone for denial of an amendment."

United States Fire Insurance Co. v. Kelman Bottles, No. 12-2270, 2013 WL 5303261, at *8 (3
Cir. Sept. 23, 2013) (internal citations and quotations omitted). "To justify the denial of a
motion to amend, the asserted prejudice must amount to more than mere inconvenience to the
non-moving party." Voilas et al. v. General Motors Corp., et al., 173 F.R.D. 389, 396 (D.N.J.
1997) (internal citations and quotations omitted). "[F]rustrated expectations [do not] constitut
undue prejudice sufficient to overcome the Rule 15(a) right to amend a pleading." See Long v.

Wilson, 393 F. 3d 390, 400 (3d Cir. 2004) (internal citations and quotations omitted). In
determining what constitutes unfair prejudice, courts consider whether allowing the amended
pleading would (1) require the non-moving party to expend significant resources to conduct
discovery and prepare for trial, (2) significantly delay resolution of the dispute, or (3) prevent
party from bringing a timely action in another jurisdiction. Id. (internal citations omitted).

15

Generally, courts have not found unfair prejudice when a party moves to amend while
discovery is still open. See, e.g., Transweb v. 3M Innovative Properties Co., et al., No. 104413 (FSH), 2011 WL 2181189, at *9 (D.N.J. June 1, 2011)(findingno unfair prejudice where
schedule would not be impacted and several months of fact discovery remained); Leibholz v.

Hariri and Celgene Corp., No. 05-5148 (DRD), 2007 WL 2177386, at *6 (D.N.J. July 27,
2007) (granting amendment where discovery was still open and final pretrial conference had

t

been set, among other factors). In contrast, "[i]fthe proposed amendment requires the
reopening of discovery, the prejudice to the non-moving party will be considered greater than
the proposed amendment presents only a new issue oflaw." Voilas, 173 F.R.D. at 396 (intern
citations and quotations omitted).
Courts have also not found unfair prejudice where the non-moving party had notice of e
amendment through earlier motions to amend. See id. In Voilas, plaintiffs in a class action
moved to amend their complaint to add 176 new plaintiffs to the existing six plaintiffs after
they were denied class certification. Plaintiffs had previously moved to amend the
complaint to add over 160 plaintiffs, but this motion had never been ruled upon by the
court. The defendant, General Motors, argued that the amendment would be prejudicial
because the action was filed over two years ago, the case was at a late stage in litigation, an
discovery as to the six original plaintiffs was near completion. The Court held that the
defendants' argument of prejudice was "without merit" because defendants had been on notic
of many of these potential additional plaintiffs since plaintiffs filed their prior motion to
amend (which was never ruled upon by the Court) to add over 160 plaintiffs. Furthermore,
when plaintiffs moved for class certification, approximately a year and a half before they fil d

16

their pending motion to amend, defendants also had notice that there may be additional
claimants.
Here, Defendants argue that the amendment would prejudice them because the newly
defined classes would sweep in new properties that were not in the class definition in the
operative complaint. See Defendant Honeywell's Opposition, at 13 (ECF no. 228). However, s
in Voilas, Defendants have been on notice that these areas may be part of the litigation sine
Plaintiffs first proposed including many of these areas in prior motions to amend. 14 Defendant
were well acquainted with Plaintiffs' prior motions to amend, negotiating and conferring with
Plaintiffs extensively to arrive at the current operative complaint. In these prior motions to
amend, Plaintiffs' class definitions incorporated many of the same areas that are now being
proposed in their new amendment. Similar to the Voilas defendants, Defendants in this case h
notice of many of the potential new plaintiffs and properties in the proposed amendment throu
Plaintiffs' prior motions to amend.
Even if Defendants did not have notice, the Court finds that the change in the scope of e
properties included in the class definitions will not result in unfair prejudice. Although
Defendants argue that the amendment will require additional discovery, the inconvenience of
new interrogatories or additional discovery alone does not amount to unfair prejudice. See
Voilas, 173 F.R.D. at 396 (internal citations and quotations omitted). Furthermore, Plaintiffs

represent that no additional discovery will be needed aside from discovery of the three new
plaintiffs.

14

Plaintiffs also argue that Defendants had notice because their complaint informs Defendants that "to the extent
revealed by discovery and investigation, there may be additional appropriate classes and/or subclasses from th
above class definitions which are broader and/or narrower in time or scope of exposure." See ECF no 230, at 9.

17

THE COURT: But will there be new document demands based on this ifl grant the
motion?
MR. GERMAN: No, not- not to the parties, no.
THE COURT: And will there be a letter to the parties suggesting they supplement thei
discovery responses based on the amendment?
MR. GERMAN: No, Your Honor.
See October 18, 2013 Status Conference Transcript, at 35 (ECF no. 237); Plaintiffs' Reply Bri ,

at 9-10. The Court finds that Defendants would not be significantly burdened by taking three
additional plaintiff depositions.
Defendants' remaining arguments pertain to wasted efforts. Defendants complain that
Plaintiffs have changed their class definitions numerous times, causing Defendants to redo thei
strategy each time. See Defendant Honeywell's Opposition, at 12 (ECF no. 228). They
complain that the class action has been pending for over three years and that Plaintiffs are on
their fifth complaint. 15 !d. They also complain that the discovery and expert analysis they
obtained would be wasted, and that they may need to find new experts and take additional
discovery. /d.
The Court's review of the procedural history reveals that, to date, there have been two
complaints in this case: the original complaint and an amended complaint that the Court order
Plaintiffs to file on June 14, 2012. See Class Action Complaint, dated May 17, 2010 (ECF no.
1); Amended Class Action Complaint, dated June 20, 2012 (ECF no. 124). The original

15
The Court notes that although Plaintiffs have filed only their original complaint and an amended complaint,
Plaintiffs in the instant motion to amend have inaccurately entitled their proposed new complaint, "Fourth Amen d
Class Action Complaint." While Plaintiffs may have moved to amend four times, Plaintiffs withdrew two ofthos
motions. Therefore, the proposed amended complaint is more accurately described as a second amended class
action complaint.

18

complaint was amended only once, on June 20, 2012. Because Plaintiffs' prior motions to
amend were withdrawn or denied at the request of both parties, any changes in strategy as a
result of these motions would have been unnecessary. In other words, the filing of motions to
amend alone should not have caused a change in strategy. 16 Only when the Court grants a
motion to amend does the operative complaint actually change. Therefore the Court finds that
Defendants did not suffer unfair prejudice from decisions to change their strategy when the
operative complaint was not amended until June 20, 2012.
As for Defendants' argument of wasted consultation with experts, the Court finds that
Defendants' assertion of inconvenience, with nothing more, does not amount to unfair prejudi
While Defendants' expectations regarding strategizing with their experts may have been
frustrated, "frustrated expectations [do not] constitute undue prejudice sufficient to overcome t e
Rule 15(a) right to amend a pleading." Long v. Wilson, 393 F. 3d 390, 400 (3d Cir. 2004). In
their briefs and submissions, the parties represent that they are in the midst of discovery.
Plaintiffs state that they received approximately 2.6 million pages of discovery between June
2012 and June 2013, and moved to amend as soon as they digested the information and felt the
had analyzed sufficient information on the COPR sites. See Joint Letter, at 2 (ECF no. 239).
calculated, and perhaps prudent, decision to retain experts long before discovery concludes
cannot equate to unfair prejudice thereby precluding the filing of amended pleadings.

16

As discussed previously, Plaintiffs' prior motions to amend were withdrawn or denied at the request of both
parties.

19

2.

Undue Delay

Delay, to become a legal ground for denying a motion to amend, must result in prejudi
to the non-moving party. Long v. Wilson, 393 F. 3d 390, 401 (3d Cir. 2004). Delay alone is
insufficient ground to deny a motion to amend. Lyon v. Goldstein, No. 04-3458 (MLC), 2006
WL 2352595, at *4 (D.N.J. Aug. 15, 2006) (citing Cureton v. Nat'/ Collegiate Athletic Ass 'n,
252 F. 3d 267, 273 (3d Cir. 2001 )). "A delay becomes undue when it places an unfair burden
the non-moving party or the court." Id. A delay may also become undue where the moving
party "has had prior opportunities to amend the pleading and has not done so." Id.
Although Defendants do not expressly argue that there is undue delay, they imply that
Plaintiffs unduly delayed moving to amend their complaint to change the property ownership
time frame from owners as of May 17, 2010 to owners "on or after September 30, 2008." See
Joint Letter, at 4 (ECF no. 239); Joint Letter, Ex. 1 (ECF no. 239-1). Defendants argue that
"Plaintiffs have been fully aware of the September 30, 2008 date since they first filed this law it
nearly three and half years ago," implying that Plaintiffs' amendment to change the property
ownership timeframe should be denied because of undue delay. Id. Defendants argue that the
have "spent over two years conducting discovery based on a proposed class of individuals wh
owned property as of May 17, 201 0," and that the increased cost and lengthened discovery tha
would result from changing the record ownership date would prejudice them. See Defendant
PPG' s Opposition, at 10 (ECF no. 229). Plaintiffs do not explain why they did not change the
property ownership timeframe earlier. Plaintiffs only argue that they designed these
amendments after consulting with environmental and real estate experts. See Joint Letter, at 3
2 (ECF no. 239).

20

Here the Plaintiffs ask too much. All of the other proposed amendments appeared to
rationally tie the claims into the newly available discovery. The change in property ownership
timeframe, in contrast, does not appear to be related to the newly available discovery, and
Plaintiffs completely fail to explain their undue delay in seeking this amendment. 17 Furtherm e,
Plaintiffs fail to explain why additional homeowners should be swept into the class at this stag
of the proceedings. Therefore, the Court denies Plaintiffs' request to amend the property
ownership time frame in its class definitions.
3.

Futility

"A court will consider an amendment futile if it is frivolous or advances a claim or
defense that is legally insufficient on its face." White v. Smiths Detection, Inc., eta/., No. 104078, 2013 WL 1845072, at *11 (April30, 2013) (internal citations and quotations omitted).
proposed amendment may be denied based on futility if it "would fail to state a claim upon
which relief could be granted." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). "In
assessing 'futility' the District Court applies the same standard oflegal sufficiency as applies
under Rule 12(b)(6)." !d. To survive dismissal under Rule 12(b)(6), a complaint "must contai
sufficient factual matter accepted as true to 'state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009) (internal citation omitted). Moreover, in determi

g

whether a proposed amendment is futile, "the court looks only to the pleadings."
Pharmaceutical Sales & Consulting Corp. v. J. W.S. Delavau Co., 106 F. Supp. 2d 761, 765

(D.N.J. 2000).

17

Under a Rule 16 "good cause" analysis, which the Court held was not required, see infra at section A.2., the C
would have denied this amendment as well, as Plaintiffs fail to demonstrate due diligence in seeking the amendm t.

21

"[D]ismissal of class certification allegations should be ordered only in those rare
cases where the complaint itself demonstrates that the requirements for maintaining a class
action cannot be met." Ehrhart v. Synthes, No. 07-01237 (SDW), 2007 WL 4591276 (D.N.J.
Dec. 28, 2007) (internal citations omitted). Moreover, because a court's decision on class
certification as a practical matter should be based on more information than what is in the
complaint, "courts frequently have ruled that discovery relating to the issue of whether a class
action is appropriate needs to be undertaken before deciding whether to allow the action to
proceed on a class basis." Association ofNew Jersey Chiropractors, et al. v. Aetna, Inc., No.
09-3761(JAP), 2011 WL 2489954 (D.N.J. June 20, 2011) (internal citations omitted).
Defendants argue that the proposed class definitions are futile because they are not
readily ascertainable and based on objective criteria, and therefore, would not be certifiable.
Defendant PPG's Opposition, at 5 (ECF no. 229). Defendants argue that Plaintiffs have dra
arbitrary lines around their proposed class areas that "bear no objective relationship to PPG's
alleged activities or conduct," and that "Plaintiffs have provided no basis to demonstrate that
every property within their proposed class definitions were affected by chromium exposure fr
PPG or Honeywell" or that all people within the boundary lines described in the class definitio s
have a claim. Id. at 6. Plaintiffs argue that it is premature to determine whether the proposed
classes are certifiable. The Court agrees. The amended complaint itself does not demonstr e
that the requirements for maintaining a class action cannot be met, and Defendants do not
argue this is the case, but argue only that the classes are not certifiable. Furthermore, becau
courts often look to discovery to determine whether to allow a class action to proceed, and
because this case is in the middle of discovery, it is too early for the court to determine wheth

22

this action could continue on a class basis. Thus, the Court cannot conclude at this time that th
proposed class definition would be futile.

III.

CONCLUSION

In conclusion, the Court GRANTS Plaintiffs' request to amend their complaint to redefine the plaintiff classes and name new class representatives, and DENIES Plaintiffs' reques
to change the property ownership timeframe defining the plaintiff classes. Plaintiffs should til
their amended complaint by January 30, 2014.

cc:

Hon. Esther Salas, U.S.D.J.

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