United States District Court, S.D. New York
May 17, 2004.
OS RECOVERY, INC., et al., Plaintiffs, -against- ONE GROUP INTERNATIONAL, INC., et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
By order dated February 9, 2004, the Court granted the motion of
defendant Latvian Economic Commercial Bank to dismiss the second amended
complaint and granted leave to replead. The order specifically cautioned
that "if plaintiffs elect to amend pursuant to this order, they should
take their best shot and should not assume that leave to amend will be
granted yet again."
Plaintiffs took advantage of the leave thus granted and filed a third
amended complaint. Defendants Latvian Economic Commercial Bank and Parex
moved to dismiss that pleading. Plaintiffs then went to school on the
motion papers and filed the present motion for leave to file a fourth
amended complaint. The motion makes no substantial showing that anything
in the proposed fourth amended complaint was unavailable to the
plaintiffs when they filed the third amended complaint or, for that
matter, otherwise explains in any meaningful way their failure to make
the new allegations earlier.*fn1
Leave to amend ordinarily should be granted freely. Foman v. Davis,
371 U.S. 178, 182 (1962). Nevertheless, "the district court has
discretion to deny leave if there is a good reason for it, such as
futility, undue delay, or undue prejudice to the opposing party."
Wantanabe Realty Co. v. City of New York, No. 01 Civ. 10137 (LAK), 2003
U.S. Dist.LEXIS 11617 (S.D.N.Y. June 10, 2003). Plaintiffs have delayed excessively in seeking to amend yet again. The
third amended complaint was their fourth attempt to file a legally
sufficient complaint. A fourth would be their fifth attempt. There is no
suggestion that any of the allegations in the fourth amended complaint
could not have been made earlier, much less that any such allegations
would be significant. Their tardiness has put Parex and Lateko to the
expense of moving against the third amended complaint in reliance
on the Court's clear warning that that was to be plaintiffs' last and
best attempt only to confront them with having the rug pulled out
from under them.
In all the circumstances, the motion for leave to amend [docket item
182] is denied.
It is ORDERED that counsel to whom this Order is sent is responsible
for faxing a copy to all counsel and retaining verification of such in
the case file. Do not fax such verification to Chambers