QUEENS WEST DEVELOPMENT CORPORATION et al v. HONEYWELL INTERNATIONAL, INC.
OPINION and ORDER that Plaintiffs' Motion for Leave to file an Amended Complaint is GRANTED, in part, and DENIED, in part. Plaintiffs' Amended Complaint shall be filed by January 21, 2013. Signed by Magistrate Judge Douglas E. Arpert on 1/15/2013. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
QUEENS WEST DEVELOPMENT
RIVERVIEW II, LLC; AVALON
RIVERVIEW NORTH, LLC, f/k/a
AVALON RIVERVIEW III, LLC,
Civil Action No. 10-4876-PGS
OPINION AND ORDER
This matter comes before the Court on Plaintiffs Queens West Development Corporation,
Avalon Riverview II, LLC, Avalon Riverview North, LLC, f/k/a Avalon Riverview III, LLC’s
(collectively, “Plaintiffs”) Motion for Leave to File an Amended Complaint [dkt. no. 51],
returnable October 22, 2012. Plaintiffs’ proposed Amended Complaint substitutes AvalonBay
Communities, Inc. (“AvalonBay”) for the now dissolved Plaintiff Avalon Riverview II, LLC
(“Avalon II”). The proposed Amended Complaint also includes additional factual allegations and
legal assertions concerning Defendant’s successor liability. Finally, the Amended Complaint
includes more current allegations regarding Plaintiffs’ remediation efforts and costs incurred to
date. Defendant Honeywell International, Inc. (“Honeywell” or “Defendant”) has opposed the
Motion [dkt. no. 55]. The Court heard argument on October 22, 2012 and has carefully
considered the submissions of the Parties. For the reasons set forth herein and on the record
following oral argument, Plaintiffs’ Motion is GRANTED, in part, and DENIED, in part.
FACTUAL AND PROCEDURAL HISTORY
This action seeks recovery of costs incurred by Plaintiffs to investigate and remediate
historic environmental contamination of a site in Long Island City, New York (“the Site”).
Plaintiffs filed their Complaint on September 23, 2010. The Complaint alleges that corporate
predecessors of Honeywell owned and/or operated the Warren Chemical Works, an industrial
facility located on the Site. Plaintiffs’ Complaint originally included four Counts:
(1) CERCLA § 107(a) Cost Recovery;
(2) CERCLA § 113(f)(3)(B) Contribution;
(3) Common Law Nuisance; and
(4) Common Law Legal and / or Equitable Restitution.
Honeywell filed a Motion to Dismiss Counts (2), (3) and (4). By Order dated August 18,
2011, U.S. District Judge Peter G. Sheridan dismissed Counts (2) and (3). Judge Sheridan denied
Defendant’s Motion to Dismiss Count (4) without prejudice.
In this Motion to Amend, Plaintiffs seek to add AvalonBay as a plaintiff asserting its own
CERCLA cost recovery claim and its own common law restitution claim. Plaintiffs argue the
addition is necessary because Avalon II was dissolved in 2005. The inclusion of Avalon II
instead of AvalonBay in the original Complaint, according to Plaintiffs, was an inadvertent
STANDARD OF REVIEW
FED. R. CIV. P. 15(a) governs amendments to pleadings. The Rule provides that “leave
shall be freely given when justice so requires.” However, leave to amend is not automatic. The
Third Circuit has recognized that a request for leave to amend may be denied when the proposed
amendment is futile. See Arab Africa Int’l Bank v. Epstein, 10 F. 3d 168, 175 (3d Cir. 1993)
(denying leave to amend when RICO claim was time-barred); see also Garvin v. City of
Philadelphia, 354 F. 3d 215, 222 (3d Cir. 2003) (affirming the District Court’s denial of
plaintiff’s motion to amend when plaintiff’s amended complaint would not have survived a
motion to dismiss in light of the statute of limitations).
An amendment will be considered futile if it “is frivolous or advances a claim or defense
that is legally insufficient on its face.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D.
463, 468 (D.N.J.1990) (citations omitted). In determining whether an amendment is insufficient
on its face, the Court employs the same standard as in a Rule 12(b)(6) motion to dismiss. In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted).
Under a Rule 12(b)(6) analysis, the question is not whether the movant will ultimately prevail,
and detailed factual allegations are not necessary to survive such a motion. Antoine v. KPMG
Corp., 2010 WL 147928, at *6 (D.N.J. Jan. 6, 2010). If a proposed amendment is not clearly
futile, then denial of leave to amend is improper. Meadows v. Hudson County Bd. of Elections,
2006 WL 2482956, at *3 (D.N.J. Aug. 24, 2006). “Generally, a Court is not concerned with the
question of whether the amended complaint would be barred by the Statute of Limitations unless
this fact appears clearly from the record.” Alfieri v. Willys Motors Inc., 35 F.R.D. 194, 95 (E.D.
Nonetheless, “a plaintiff's obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). Determination of whether a Complaint survives a motion to dismiss requires a two-part
analysis. Folwer v. UMPC Shadyside, 578 F.3d 203, 210 (3d. Cir. 2009).
First, factual and legal elements of the complaint must be separated. Folwer, 578 F.3d at
210. All well-pleaded facts must be accepted as true, but legal conclusions may be disregarded.
Id. at 210–11. Second, the Court must determine whether the plaintiff's complaint articulates
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). This context-specific task requires the “reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
The Court may consider only a very limited record when evaluating whether a proposed
amended complaint is futile. When evaluating an objection based upon futility, the Court may
only consider the pleading, exhibits attached to the pleading, matters of public record, and
undisputedly authentic documents if the claims are based on those documents. Pension Benefit
Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1992).
Honeywell claims the proposed amendment to include AvalonBay as a plaintiff is futile
because its claims are time-barred by CERCLA’s 6 year statute of limitations for remedial
actions. 1 In support of this position, Honeywell advances three separate dates which it contends
may have triggered the statute of limitations. 2
Statute of Limitations
Under CERLCA, in order to recover costs relating to a remedial action, the lawsuit to
recover those costs must be commenced “within 6 years after initiation of physical on-site
construction of the remedial action . . . .” 42 U.S.C.A. § 9613(g)(2)(B).
Because the Complaint was filed on September 23, 2010, any action constituting “remedial
action” prior to September 23, 2004 would trigger the statute of limitations and result in the
claims being barred.
Notably, none of the cases cited by Honeywell include a determination of the relevant
triggering date in the context of a motion to dismiss.
CERCLA defines “remedial action,” in relevant part, as follows:
The terms “remedy” or “remedial action” mean those actions
consistent with permanent remedy taken instead of or in addition to
removal actions in the event of a release or threatened release of a
hazardous substance into the environment, to prevent or minimize
the release of hazardous substances so that they do not migrate to
cause substantial danger to present or future public health or
welfare or the environment. The term includes, but is not limited
to, such actions at the location of the release as storage,
confinement, perimeter protection using dikes, trenches, or ditches,
clay cover, neutralization, cleanup of released hazardous
substances and associated contaminated materials, recycling or
reuse, diversion, destruction, segregation of reactive wastes,
dredging or excavations, repair or replacement of leaking
containers, collection of leachate and runoff, onsite treatment or
incineration, provision of alternative water supplies, and any
monitoring reasonably required to assure that such [remedial]
actions protect the public health and welfare and the environment
42 U.S.C.A. § 9601(24) (West).
Although the Third Circuit has not yet clarified the issue of remedial activity, other
circuits have. The Second Circuit, in Shaefer v. Town of Victor, determined that the plaintiff’s
use of a crane to dig, drag and spread on-site soils and other materials qualified as initiation of
on-site construction because it was part of a “long-term, permanent containment effort” intended
“to prevent or minimize the release of hazardous substances.” 457 F. 3d 188, 202-204 (2d Cir.
2006). The Eight Circuit, in United States v. Findett Corp., distinguished this type of remedial
activity from activity that could be considered only preparatory. 220 F. 3d 842, 848 (8th Cir.
2000) (activities such as “sampling, surveying, evaluation and measuring” did not constitute
initiation of physical on-site construction because these activities did not constitute
“construction”). Similarly, the Sixth and Seventh Circuits have also held that for remedial action
to begin, the work must be consistent with the permanent remedy. See Geraghty & Miller, Inc. v.
Conoco, Inc., 234 F. 3d 917, 927 (5th Cir. 2000); United States v. Navistar International
Transportation Corp., 152 F. 3d 702, 712-13 (7th Cir. 1998). Only the Ninth Circuit has adopted
a bright-line rule. In California v. Neville Chemical Co., the Ninth Circuit held that the initiation
of physical on-site construction can only occur after the adoption of the final remedial action
plan. 358 F. 3d 661, 667 (9th Cir. 2004). 3
CERCLA also distinguishes between “remedial” and “removal” actions. 42 U.S.C.A. §
9613(g)(2)(A). For removal actions, litigation must be commenced within 3 years after
completion of the removal activity. Id. CERCLA defines “removal action,” in relevant part, as
The terms “remove” or “removal” means the cleanup or removal of
released hazardous substances from the environment, such actions
as may be necessary taken in the event of the threat of release of
hazardous substances into the environment, such actions as may be
necessary to monitor, assess, and evaluate the release or threat of
release of hazardous substances, the disposal of removed material,
or the taking of such other actions as may be necessary to prevent,
minimize, or mitigate damage to the public health or welfare or to
the environment, which may otherwise result from a release or
threat of release. The term includes, in addition, without being
limited to, security fencing or other measures to limit access,
provision of alternative water supplies, temporary evacuation and
housing of threatened individuals not otherwise provided for . . .
42 U.S.C.A. § 9601(23) (West).
While removal actions are “immediate or interim responses,” remedial actions “generally
are permanent responses.” Geraghty & Miller, 234 F. 3d at 926 (further noting that cases on this
issue tend to be highly fact-specific). Consistent with this understanding, “Congress intended that
the term ‘removal action’ be given a broad interpretation.” Id. Remedial actions, on the other
Plaintiffs submitted documentation showing the final remedial work plans were not submitted
to New York State Department of Environmental Conservation (“NYSDEC”) for approval until
May, 2005 (Parcel 9) and September, 2010 (Parcel 8). Chertok Decl., dkt. no. 51-2, ¶ 4.
hand, are generally conducted over an extended period of time, with costs in excess of 1 million
dollars. See Louisiana v. Braselman Corp., 78 F. Supp. 2d 543, 548 (E.D. La. 1999).
Defendant first argues that remedial activities were initiated at the site in 1985 when
monitoring and sampling wells were installed on Parcels 8 and 9. Defendant further contends
“monitoring” is specifically contemplated by the statute. Def.’s Br. at 11-12 (citing Yankee Gas
Services Co. v. UGI Utilitlies, Inc., 616 F. Supp. 2d 228, 273 (D. Conn. 2009) (excavators,
curbing machines, front end loaders, cranes, bulldozers, vibratory rollers, and trenches to collect
tar triggered initiation of physical on-site construction); Navistar, 152 F. 3d at 713 (7th Cir.
1998) (permanent clay cap called for by remedial action triggered statute of limitations)).
Plaintiffs, in contrast, argue this activity was merely an investigative or preparatory measure.
The statue considers only “monitoring reasonably required to assure that [remedial]
actions protect the public health and welfare and the environment.” 42 U.S.C.A. § 9601(24). A
plain reading of the statute suggests that it contemplates post-remedial monitoring, or monitoring
necessary to evaluate on-going remedial action. It does not purport to address monitoring which
is merely preparatory. However, for the purposes of the instant Motion, the Court needn’t engage
in a detailed statutory interpretation analysis. In the absence of clear precedent to the contrary,
the Court will adopt this interpretation at least to the extent it supports Plaintiffs’ plausible claim
that the 1985 activities, as merely preparatory, did not trigger the applicable statute of
Defendant next argues that remedial activities at the Site commenced in 2000/2001 when
demolition of pre-existing buildings, removal of steel/concrete vaults, and installation of fencing
Again, Plaintiffs maintain that these activities at the Site were merely preliminary. With
regard to removal of the vaults and excavation, Plaintiffs advance four reasons why this activity
did not trigger the applicable statute of limitations. First, the work was undertaken by Queens
West Development Corporation (“QWDC”) (not an Avalon entity) pursuant to a lease that
provided QWDC was responsible for the removal of improvements and that Avalon would be
responsible for environmental remediation. Specifically, the removal of the steel vaults was
merely incidental to the demolition activity and, at that time, associated petroleum contamination
was left in place pending the remediation of the Site. Second, the steel vaults contained
petroleum, a chemical excluded from CERCLA’s definition of hazardous substances, and for
which removal costs are not recoverable. See 42 U.S.C.A. § 9601(14). Third, Plaintiffs argue
that even if the Court concludes the vault removal constituted remedial action, it was an entirely
separate phase of activity than that conducted in 2005, “limited to addressing a discrete issue,
and was thus the equivalent of a different ‘operable unit.’” Pl.’s Reply at 12 (citing U.S. v.
Manzo, 2006 WL 2845763, at *7 (D.N.J. 2006) (“the statute of limitations does not bar
compensation for operable units qualifying under the limitation even if the plaintiff is barred
from seeking compensation from earlier operable units”)). Fourth, Plaintiffs contend the fencing
was installed to prevent dumping and allow safe pedestrian access—purposes which do not
trigger initiation of remedial action. Pl.’s Reply at 13 (citing U.S. v. Atlantic Richfield, 147 F.
Supp. 2d 614, 620-21 (S.D. Tex 2001) (noting security fencing is included as a removal, not
remedial action)). In sum, Plaintiffs argue:
Honeywell’s implicit position that any physical work on a site which was later
remediated triggers the limitations period is contrary to the statue and relevant
case law distinguishing between removal and remedial actions, and preliminary
site activities constituting neither removal or remediation.
Pl.’s Reply at 11. Given all of the above, Plaintiffs have alleged sufficient facts to plausibly
suggest the activities at the Site in 2000/2001 did not trigger the applicable limitations period.
The Parties appear to agree that, at a minimum, the activities at the Site in 2005 triggered
the limitations period. As these activities occurred after September 23, 2004, AvalonBay’s
proposed CERCLA claims would be time barred unless they “relate back” to the filing of the
original Complaint. Therefore, using the 2005 activities as the appropriate trigger, Defendant
argues AvalonBay’s claims are futile because they do not relate back.
Fed R. Civ. P. 15(c)(1) provides that an amendment to a pleading relates back to the date
of the original pleading when:
the law that provides the applicable statute of limitations
allows relation back;
the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading; or
the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)(B)
is satisfied and if, within the period provided by Rule 4(m)
for serving the summons and complaint, the party to be
brought in by amendment:
received such notice of the action that it will not be
prejudiced in defending on the merits; and
knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.
Although Rule 15(c)(1)(C) expressly addresses amendments changing a defendant, it
“extends by analogy to amendments changing plaintiffs.” Yanes v. Minute Maid Co., 2006 WL
1207992, at *3 (D.N.J. May 3, 2006); Nelson v. County of Allegheny, 60 F. 3d 1010, 1014 (3d
Cir. 1995). In Yanes, U.S. District Judge Mary L. Cooper wrote:
The “attitude” reflected in Rule 15 emphasizes that in order for an amended
complaint to relate back to the original, the defendants must have (1) notice so
that their defense is not prejudiced, and (2) knowledge that a claim could be
brought against them by the new plaintiffs. The original complaint sufficiently
notifies the defendant when (1) the new plaintiffs allege injury caused by the
same conduct set out in the original complaint, or (2) there is an identity of
interest between the original plaintiff and the new plaintiffs.
2006 WL 1207992, at * 3; see also Nelson, 60 F. 3d at 1014-15; Staren v. Amer. Nat'l Bank &
Trust Co., 529 F.2d 1257, 1263 (7th Cir. 1976); Andujar v. Rogowski, 113 F.R.D. 151, 158-59
(S.D.N.Y.1986) (allowing addition of plaintiff to relate back to the original complaint when
additional plaintiff was the real party in interest); Fashion Novelty Corp. of N. J. v. Cocker
Mach. & Foundry Co., 331 F. Supp. 960, 965 (D.N.J. 1971) (identifying “virtual identity”
between the new and original plaintiffs). Thus, the purpose of relation back is “to balance the
interests of the defendant protected by the statute of limitations with the preference expressed in
the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes
on their merits.” Krupski v. Costa Crociere S. p. A., 130 S. Ct. 2485, 2494 (2010).
To be sure, the Third Circuit has noted Rule 15(c)’s “chief consideration of policy is that
of the statute of limitations.” Nelson, 60 F. 3d at 1014 n.7 (referencing Rule 15’s Committee
Notes). But, “[t]he substitution of . . . parties after the applicable statute of limitations may have
run is not significant when the change is merely formal and in no way alters the known facts and
issues on which the action is based.” Staren, 529 F.2d at 1263. “[W]here the defendant has had
notice from the beginning that the plaintiff . . . is trying to enforce a claim against it because of
specified conduct, the reasons for the statute of limitations do not exist.” Fashion Novelty, 331
F.Supp. at 964 (internal citations omitted).
Plaintiffs maintain that the claims of AvalonBay relate back because: (1) they relate to
the same conduct in the original Complaint; (2) there is an identity of interest between the named
plaintiff and the plaintiff to be named (Avalon II was the wholly owned subsidiary of
AvalonBay); and (3) Defendant had knowledge that such claims could have been brought against
it (because, for example, Defendant’s document requests sought information related to any and
all documents created and/or maintained by AvalonBay relating to environmental investigation,
remediation, and/or construction activities at the Site). In addition, Plaintiffs note that Defendant
makes no assertion that it would suffer any prejudice in the event AvalonBay were substituted
for Avalon II.
Defendant argues Plaintiffs’ mistake in failing to name AvalonBay should bar the
amendment from relating back. This argument is not supported by the cases cited by Defendant.
Both the Nelson and Agere courts held relation back was not available when there had been no
mistake in identifying the named plaintiffs in the original complaint. Unlike a mistake, the
putative plaintiffs in those cases had made an affirmative choice not to join the lawsuits in the
outset. See Nelson, 60 F. 3d at 1014 (denying new class members the benefit of relation-back
when Defendants did not know (or should not have known) that they could be sued directly by
the putative plaintiffs and putative plaintiffs failed to demonstrate mistake in filing); Agere Sys.
Inc. v. Advanced Envt’l Tech. Corp, Civ. A. 02-3830, dkt. no. 279-1, at *11-12 (E.D. Pa. Jan 11,
2008) (finding putative plaintiffs were “two steps removed” from original plaintiff, “not in the
same position, and are not real parties in interest”). In addition, unlike this case, the parties
seeking to be added were entirely different parties, with interests independent from the other
plaintiffs (and in the case of Nelson, with separate monetary claims). Here, Plaintiffs claim the
failure to add AvalonBay was a mistake. Moreover, Plaintiffs maintain they are not trying to do
an end run around the statute of limitations. Instead, they are merely substituting a corporate
parent for its wholly owned subsidiary. Thus, the statute of limitations concerns are not similarly
The Court concludes that AvalonBay’s claims do relate back to the filing of the original
Complaint in September, 2010. As to whether the claims pled in that Complaint were timely
asserted, the Court cannot, and need not, conclude as a matter of law that they were not. Rather,
this determination should be made with respect to the claims of all of the named Plaintiffs on the
basis of a more fully developed factual record. Accordingly, the Court does not accept the
argument that the proposed amendment would be futile as time-barred.
Defendant claims the restitution claims asserted by AvalonBay in the proposed Amended
Complaint are preempted by CERCLA. In support of this position, Defendant advances the same
argument raised in its earlier Motion to Dismiss. In an Opinion dated August 17, 2011, Judge
Sheridan denied Defendant’s Motion to Dismiss with regard to the restitution claims because
“Federal Rule of Civil Procedure 8(d)(2) permits alternative statements of a claim.” See dkt. no.
32 at *11-12. Judge Sheridan declined to rule at that stage of the litigation that Plaintiffs could
not prevail on a state common law restitution claim if they are unable to prevail on a CERCLA §
The case cited by Defendant, Bedford Affiliates v. Sills, held that “CERCLA preempts
the state law remedies of restitution and indemnification.” 156 F.3d 416, 426 (2d Cir. 1998).
However, as Plaintiffs point out, subsequent cases in the Second Circuit have limited Bedford’s
holding to claims for contribution under 42 U.S.C.A. § 9613 (a claim dismissed by Judge
Sheridan). See N.Y. v. W. Side Corp., 790 F. Supp. 2d 13, 23 (E.D.N.Y. 2011). And Defendant
itself acknowledges that other district courts in the Second Circuit have declined to dismiss
restitution claims as being preempted by CERCLA because some damages recoverable under a
restitution theory may not be recoverable under CERCLA. See Def.’s Opp. at 26 (citing N.Y. v.
Hickey’s Carting, Inc., 380 F. Supp. 2d 108, 118 (E.D.N.Y. 2005) (noting CERCLA’s legislative
history “demonstrates that Congress’ concern was that recovery would be barred under
restrictive state statutes of limitations, not that it would be allowed where it was forbidden under
federal law.”); Solvent Chem. Co. ICC Indus., Inc. v. E.I. Dupont De Nemours & Co., 242 F.
Supp. 2d 196, 211 (W.D.N.Y. 2002) (“there may be additional areas not covered by CERCLA
where a state law claim would not be duplicative”).
Defendant also claims AvalonBay’s restitution claim should be circumscribed in the
event it is not preempted by CERCLA. Specifically, Defendant argues any restitution claim by
AvalonBay should be limited to those funds expended by AvalonBay within the 6 years prior to
the Amended Complaint’s filing.
With respect to Defendant’s preemption argument as it relates to the newly added
plaintiff’s restitution claim, Judge Sheridan addressed this issue and found that Rule 8 permits
alternative statements of a claim. The Court sees no reason to find differently at this time.
Accordingly, Honeywell’s suggestion that Plaintiffs’ proposed Amended Complaint should be
denied as to this claim is rejected. For the purposes of this Motion, the Court need only
determine whether the proposed claim is time-barred on its face. It is not. Whether, and to what
extent, AvalonBay’s restitution claim ultimately survives will be determined together with the
restitution claims of the other plaintiffs.
AMENDMENTS TO SUPPLEMENT FACTUAL ALLEGATIONS
Plaintiffs seek to “provide amplification of the basis for asserting that Honeywell is the
corporate successor of companies that Plaintiffs allege to have caused the contamination, and to
reflect the current state of the remediation activities and the costs actually incurred to date.” Pl.’s
Br. at 6. This would be done based on discovery conducted to date. Defendant opposes this
request on the bases that: (1) the allegations in the Complaint already satisfy the notice pleading
standards under FED. R. CIV. P. 8(a); and (2) answering new factual allegations in the Amended
Complaint will unnecessarily result in the expenditure of additional time and expense.
The Supreme Court has emphasized that the liberal spirit embodied in the language of
Rule 15(a)(2) is to be followed by the courts. Foman v. Davis, 371 U.S. 178, 181-82 (1962). The
Third Circuit, in turn, has interpreted Foman to mean “[l]eave to amend must generally be
granted unless equitable considerations render it otherwise unjust.” Arthur v. Maersk, Inc., 434
F.3d 196, 204 (3d Cir. 2006). Prejudice to the non-moving party is considered the touchstone in
this analysis. Id.
Here, the balance of equities tips in favor of Defendant. Proposed amendments to
pleadings that amplify or supplement factual allegations based on recent discovery serve little or
no purpose. This is especially true in light of Defendant’s concession that Plaintiffs’ pleadings
satisfy the general notice requirements of the Rules (both as to the factual allegations and
damage claims). Therefore, the Court finds the proposed amendments with respect to Plaintiffs’
factual allegations are unnecessary and will only add time, expense and potential confusion.
Defendant would unfairly be forced to investigate the bases for the new allegations, evaluate
their validity, and respond. Notwithstanding the liberal standard for permitting amendments,
Plaintiffs’ request in this regard is DENIED.
CONCLUSION AND ORDER
For the reasons described herein, as well as those set forth on the record following oral
argument on October 22, 2012, Plaintiffs’ Motion for Leave to file an Amended Complaint is
GRANTED, in part, and DENIED, in part, as set forth above; and it is further
ORDERED that Plaintiffs’ Amended Complaint shall be filed by January 21, 2013.
s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE
Dated: January 15, 2013
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