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United States District Court, S.D. New York

April 21, 2004.

VALJEAN MANUFACTURING INC., et al., Plaintiffs; -against- MICHAEL WERDIGER, INC, et al., Defendants; MICHAEL WERDIGER, INC, Counterclaim Plaintiff; -against- VALJEAN MANUFACTURING INC, FRED GRUBER and MARTIN GRUBER, Counterclaim Defendants

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Plaintiff and counterclaim defendants Valjean Manufacturing, Inc. and Martin Gruber (collectively Valjean") move, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P."), to amend the complaint. Defendants and counterclaim plaintiffs Michael Werdiger, Inc. and Richard Werdiger ("collectively MWT") oppose amendment. For the following reasons, Valjean's motion to amend the complaint is granted.


  Valjean filed its original complaint on August 18, 2003. Shortly thereafter, on October 17, 2003, Valjean and MWI, through counsel, signed a Pretrial Scheduling Order ("PTSO"), committing, inter alia, to a March 31, 2004 discovery cut — off; a May 1, 2004 deadline for dispositive motions, and a July 2004 trial month. After retaining new counsel, who came on board, according to the docket, on February 11, 2004, Valjean moved, one month later (but seven months after filing its original complaint) to amend. At this late stage in the case, the discovery deadline has past, MWI has submitted a motion to dismiss the original complaint, and the case has proceeded pursuant to the claims and theories represented in Valjean's original complaint. If Valjean's motion is granted, not only will MWI have to engage in additional work, but the Court will likely have to endorse an amended PTSO, to minimize the prejudice suffered by MWI.


  Notwithstanding the efforts that must be expended to accommodate amendments, Rule 15(a) of the Fed.R.Civ.P. dictates that "leave [to amend] shall be freely given when justice so requires," and places the onus on this Court to grant or deny amendments such as the one proposed by Valjean. "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962).

  While I am convinced that allowing Valjean to file its proposed amended complaint will delay the resolution of this matter, a reason highlighted in Foman to deny amendment, I am also clear that Valjean was not motivated by bad faith, and did not move with a dilatory motive. And, although late in the litigation, this motion represents Valjean's first request to amend its complaint. Despite MWTs assertions, a comparison of the two complaints demonstrates that none of Valjean's proposed claims are new, but rather, some assert new theories, allegedly gleaned from recent depositions, in support of the same underlying claims. MWI even voluntarily dismisses certain of the claims made in its original complaint. Further, while MWI argues that amendment is fufile, as none*fn1 of Valjean's claims, as pled in the amended complaint, can survive a motion to dismiss, I am not so sure.*fn2 The viability of Valjean's claims, or the lack thereof is more suited for a motion to dismiss. As I am always guided, as I must be, by the shibboleth that, wherever possible, cases must be tried on their merits, Valjean's motion to amend its complaint is granted.


  For the foregoing reason, Valjean's motion to amend is granted and the amended complaint attached to the moving papers will be docketed The parties will submit a new PTSO within ten days, and if this joint effort fails, they will submit separate proposed orders, all within the same ten day period. The Cleric is instructed to close Valjean's motion to amend the complaint.


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