United States District Court, S.D. New York
March 16, 2004.
THOMAS SHEA, Plaintiff, -against- N.P. AGENCY, INC., Defendant
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
OPINION & ORDER
The parties met with the Court on March 9, 2004, to discuss various
discovery disputes. Plaintiff seeks leave of the Court to join additional
claims of fraud and intentional misrepresentation, and defendant seeks
leave of the Court to amend its answer to file counterclaims of breach of
contract and unjust enrichment.
Leave to amend is generally freely given under Federal Rule of Civil
Procedure 15(a), in the absence of bad faith or prejudice to the
nonmoving party. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
Cir. 1993). Plaintiff has asserted no grounds for amending his complaint
at this late juncture. The information on which he relies has been
accessible to him throughout the course of the proceeding.
The defendant, on the other hand, asserts that it gained knowledge of
the grounds underlying its counterclaims during depositions of the
plaintiff and Margaret Shea. In addition, defendant alleged in its
original answer an affirmative defense based in part on plaintiff's
breach of contract. Defendant's Answer at 5. Plaintiff therefore was
placed on notice of defendant's general intention to seek relief on this
basis. Though discovery is close to completion, the Court finds that the
plaintiff will not need to engage in significant additional discovery and
will not be delayed as a result of the amendment. See id (noting that an
assessment of "prejudice" involves considering whether the amendment will
require significant additional resources to conduct discovery and prepare
for trial, or result in significant delay to the resolution of the
dispute). As a result, defendant has not displayed bad faith in seeking
this amendment, and plaintiff will not be prejudiced by defendant's
IT IS THEREFORE ORDERED THAT
1) plaintiff is DENIED leave to join additional claims of fraud and
intentional misrepresentation; and
2) defendant's application seeking leave to amend its answer to assert
counterclaims of breach of contract and unjust enrichment is GRANTED. The
amended answer shall be due on March 25, 2004.
IT IS FURTHER ORDERED THAT
3) plaintiff's request for a reconsideration of the Court's dismissal
of plaintiff's claims more than six years prior to the filing of the
complaint is DENIED; and
4) plaintiff's request to compel the defendant to deposit with the
Court the sum of $99, 187.00 is DENIED; and
5) defendant is PERMITTED to file a motion in limine with respect to
plaintiff's and Margaret Shea's use of the attorney-client privilege in
refusing to answer questions at their depositions; and
6) a pre-trial order complying with the part rules of this Court be
submitted by April 29, 2004; and
7) a jury trial is scheduled to begin on May 17, 2004.
© 1992-2004 VersusLaw Inc.