Northern Valley Communications, LLC v. MCI Communications Services, Inc.

Filing 228

ORDER withdrawing 204 Motion to Dismiss; granting 205 Motion to Withdraw; granting 206 Motion to Amend/Correct. Signed by Chief Judge Karen E. Schreier on 12/6/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
MCI COMMUNICATIONS SERVICES,
INC., d/b/a Verizon Business Services,

)
)
)
Counterclaim Plaintiff,
)
)
vs.
)
)
GLOBAL CONFERENCE PARTNERS,
)
LLC, d/b/a Quality Conferencecall.com, )
)
Counterclaim Defendant.
)

CIV. 07-1016-KES

)
MCI COMMUNICATIONS SERVICES,
)
INC., d/b/a Verizon Business Services, a )
Delaware corporation,
)
)
Counterclaim Plaintiff,
)
)
vs.
)
)
FREECONFERENCING CORP.,
)
)
Counterclaim Defendant.
)

CIV. 07-4106

ORDER

Free Conferencing Corporation moves to amend its first amended answer
and counterclaims. The amendment adds additional factual allegations and
increases the total damages sought regarding its tortious interference with
business relations claim set forth in Count I. It also would dismiss Counts II
and III. Verizon Business Services objects to the proposed amendments to
Count I, but does not object to the dismissal of Counts II and III.

Under Federal Rule of Civil Procedure 15(a)(2), a party may amend its
pleadings “with the opposing party’s written consent or the court’s leave.” A
“court should freely grant leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). The following factors are relevant when considering a motion
for leave to amend a pleading: undue delay, bad faith, dilatory motive on the
part of the movant, and undue prejudice to the opposing party. Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008).
The first factor, undue delay, weighs in favor of Free Conferencing. Free
Conferencing’s motion was made in response to evidence that was produced
earlier this year during the discovery process. And the proposed amendment
does not add a new cause of action, but rather clarifies a cause of action that
had previously been pleaded.
The second and third factors are bad faith and dilatory motive. While
Free Conferencing did wait until the last moment to file its motion to amend
the counterclaims, the court finds there is not credible evidence of bad faith or
dilatory motive on the part of Free Conferencing.
The final factor is prejudice to the nonmoving party. No trial date has
been scheduled, but the deadline for discovery and summary judgment
motions has now passed. If there is any prejudice to Verizon, it can be cured by
the court extending those two deadlines to give Verizon an opportunity to
conduct limited discovery on the issues directly related to the amendment and
to amend its motion for summary judgment to address any new issues in the

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amended counterclaim. If Verizon needs such additional time, it should file a
motion within five days. As a result, the court finds there is no prejudice to
Verizon.
Because all the factors weigh in favor of Free Conferencing, the court
grants leave for Free Conferencing to file its motion to amend. It is
ORDERED that Free Conferencing’s motion to amend (Docket 206) is
granted. Free Conferencing should file its First Amended Answer and
Counterclaims by December 10, 2012.
IT IS FURTHER ORDERED that Free Conferencing’s motion to withdraw
its motion to dismiss Counts II and III (Docket 205) is granted.
Dated December 6, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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