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SHEA v. N.P. AGENCY

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

MEMORANDUM 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 the case Page 2 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 counterclaims.

  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. Page 3

  SO ORDERED.

20040316

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