Lester, et al v. Percudani, et al

Filing 451

ORDER denying motion for reconsideration and to amend 413 & noting that revised pretrial/trial schedule to issue upon resolution of unrelated motion for reconsideration. (See order for complete details.) Signed by Honorable Christopher C. Conner on 09/22/08. (ki)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA E D D I E and SHARON LESTER, et al., P l a in t if f s v. G E N E PERCUDANI, et al., D efen d an ts : : : : : : : : : C I V I L ACTION NO. 3:01-CV-1182 (J u d g e Conner)

ORDER A N D NOW, this 22nd day of September, 2008, upon consideration of plaintiffs' motion fo r reconsideration (Doc. 413) of the memorandum and order of court (Doc. 412) dated F e b ru ary 1, 2008, and for leave to amend the complaint to reassert a negligent m isre p res en tation claim in light of the change in Pennsylvania law decreed by Bilt-Rite C o n t ra c to r s, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005), and it appearing that th e Pennsylvania Supreme Court issued Bilt-Rite on January 19, 2005, that plaintiffs did not r e q u e s t leave to amend the complaint until March 23, 2007, (see Doc. 319), that this lapse c o n stitu te s a delay of twenty-six months, and that fact discovery in this matter closed on F e b ru ary 15, 2007, (see Doc. 293 ¶ 1), and it further appearing that leave to amend may be d e n ie d pursuant to Rule 15(a) of the Federal Rules of Civil Procedure if the plaintiff engages in undue delay when seeking to amend and the defendant is prejudiced thereby, see In re M e rc k & Co. v. Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007); Howze v. J o n e s & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) (noting that "delay alone . . . is an insufficient ground upon which to deny a motion to amend" and that "the touchstone is w h e th e r the non-moving party will be prejudiced if the amendment is allowed"); Collins v. C ity of Gloucester, No. Civ. A. 06-2589, 2008 WL 1374213, at *7 (D.N.J. Apr. 9, 2008) (quoting A d a m s v. Gould, Inc., 739 F.2d 858, 868 (3d Cir.1984)) ("The mere passage of time does not re q u ire that a motion to amend a complaint be denied on grounds of delay."), that "at some

p o in t, . . . delay . . . become[s] `undue,' placing an unwarranted burden on the court, or . . . b e c o m e [s] `prejudicial,' placing an unfair burden on the opposing party," Cureton v. Nat'l C o ll. Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2000) (quoting Adams, 739 F.2d at 868), and th a t the propriety of delay is evaluated in light of the reasons underlying the moving party's fo r b e a r a n c e , see USX Corp. v. Barnhart, 395 F.3d 161, 168 (3d Cir. 2004), and the court c o n c lu d in g that delay in excess of fifteen months warrants denial of a motion to amend if the m o v a n t fails to explain the reasons therefor, see, e.g., Cureton, 252 F.3d at 273, 276 (u p h o ld in g denial of post-judgment motion to amend complaint, because, in part, the facts su p p o rtin g amendment were known to the plaintiff for two years prior to the attempt to a m e n d ); Hewlett-Packard Co. v. Arch Assocs., 172 F.R.D. 151, 154 (E.D. Pa. 1997) (denying leav e to amend following fifteen-month delay, because the plaintiffs failed to amend due to in a d ve rte n c e ); Agostino Ferrari, S.p.A. v. Antonacci, 858 F. Supp. 478, 480 (E.D. Pa. 1994) (sam e), and the court further concluding that plaintiffs have not explained their failure to am en d until twenty-six months following Bilt-Rite's issuance, that allowing plaintiffs to a m e n d at this time could require reopening discovery and would necessitate issuance of a n e w case management schedule to permit defendants to file summary judgment motions w ith respect to the misrepresentation claim, that, at the time of Bilt-Rite's issuance, a p p r o x im a t e ly two years remained until the close of discovery,1 that motions for summary ju d g m e n t on the misrepresentation claim could have been filed within the original case m a n a g e m e n t schedule, that the instant matter is now poised to proceed to trial following d is p o sitio n of the outstanding motion for reconsideration (Doc. 422) of the court's m e m o ra n d u m and order (Doc. 420) dated March 21, 2008, that granting plaintiffs' motion

Discovery was originally scheduled to close on October 1, 2004. (See Doc. 234 ¶ 1.) The court stayed discovery on September 22, 2004 during the pendency of mediation proceedings. (See Doc. 276.) At the close of medication, a revised case management order issued under which discovery closed on February 15, 2007. (See Doc. 293 ¶ 1.) 2

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would further forestall the pretrial schedule, see Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2 0 0 4 ) (concluding that "significant[] delay in the resolution" of a case qualifies as prejudicial w h en evaluating a motion to amend), that granting the motion would require the parties and th e court to expend significant additional resources to prepare for and defend the latea rriv in g claim, see id. (identifying expenditure of significant additional resources as a source o f prejudice), and that plaintiffs could have avoided these adverse effects by seeking to a m e n d their complaint immediately following the issuance of Bilt-Rite, and the court finding th a t an amendment would therefore result in unfair prejudice to defendants2 and impose an u n w a rr a n te d burden upon the court, and that plaintiffs have engaged in undue delay in se ek in g leave to amend,3 see Arthur, 434 F.3d at 303, it is hereby ORDERED that: 1. 2. T h e motion (Doc. 413) for reconsideration and to amend is DENIED. A revised pretrial and trial schedule shall issue upon resolution of the pending u n r e la t e d motion for reconsideration. (Doc. 422; Doc 285 in Acre v. Chase M a n h atta n Mortgage Corp, Civil Action No. 1:04-CV-0832).

S/ Christopher C. Conner CHRISTOPHER C. CONNER U n ite d States District Judge

The length of plaintiffs' delay exceeds the statute of limitations applicable to the n e g lig e n t misrepresentation claim. (See 412 at 4-5.) While not dispositive of the Rule 15(a) a n a ly s is , the length of this hiatus raises concerns such as deterioration of evidence and lapse o f witness memory. The presence of these issues, which are similar to the policies u n d e rly in g the applicable limitations period, see Resolution Trust Corp. v. Farmer, 865 F. S u p p . 1143, 1152 (E.D. Pa. 1994), confirms that defendants would suffer prejudice were p la in t iffs permitted to amend at this late juncture. P la in tiffs argue that amendment is proper under Rule 15(c), which governs relation b a c k of an amended pleading to the date of the original pleading. Rule 15(c) has no effect on th e propriety of a request to amend; rather, it governs the effect of an amended pleading o n c e leave has been granted. See Arthur v. Maersk, Inc., 434 F.3d 196, 202-203 (3d Cir. 2006). Requests for leave to amend are governed by Rule 15(a). Id.; In re FleetBoston Fin. Corp. S e c . Litig., No. Civ. A. 02-4561, 2007 WL 4225832, at *28 n.40 (D.N.J. Nov. 28, 2007) (" P la in tiffs cannot utilize the "relation back" doctrine derived from Rule 15(c) to avoid the eq u itab le considerations of Rule 15(a)."). In light of the denial of leave to amend under Rule 1 5 (a ), the court need not address plaintiffs' contention that the amended complaint relates b a c k to the original pleading under Rule 15(c).
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