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OS RECOVERY INC. v. ONE GROUP INTERNATIONAL INC.

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

ORDER

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.

  SO ORDERED.

  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


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