The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge
Defendant Adam Madow moves the Court for an order granting summary judgment on the Complaint and dismissing the cross-claims asserted by Andrew Marvel and Phyllis Sachs. Defendant Adam Madow also seeks an order directing Plaintiff to pay the proceeds of the annuity contracts which are the subject of this action to Defendant Adam Madow. Third-Party Defendants Robert Madow and R. Madow & Sons, Inc. move the Court for an order granting summary judgment on the third-party action. Plaintiff has taken no position on the motion for summary judgment. Defendants Andrew Marvel and Phyllis Sachs oppose the motion for summary judgment on the grounds that it is premature.
Further, Defendants Andrew Marvel and Phyllis Sachs ("Marvel and Sachs") separately requested permission to file an Amended Answer with Counterclaims and an Amended Third-Party Complaint. [DE 48] Defendant Adam Madow and Third-Party Defendants Robert Madow and R. Madow & Sons (the "Madow Parties") oppose that request on the basis of futility. The Madow Parties contend that the pending summary judgment motion renders the amendment futile.
For the reasons set forth below, the Madow Parties' motion for summary judgment is DENIED, in its entirety, and the motion by Marvel and Sachs to file an Amended Answer with Counterclaims and an Amended Third-Party Complaint is GRANTED.
Plaintiff Penn Mutual Life Insurance Company ("Penn Mutual") brought this interpleader action against Adam Madow, Andrew M. Marvel and Phyllis Sachs for a determination by the Court with respect to the proceeds of an annuity contract issued to Marcia Marvel ("Decedent") in 2004. The death benefit of the contract's proceeds as of the date of the Decedent's death on June 28, 2007 was approximately $119,000.
At the time the contracts were issued, Andrew Marvel and Phyllis Sachs were designated as revocable beneficiaries of the contracts. In April 2007, the Decedent submitted a change in beneficiary form, naming Robert Madow as the beneficiary. Penn Mutual rejected that change in beneficiary because Robert Madow was an insurance sales agent for Penn Mutual. On June 8, 2007, the Decedent signed a new change in beneficiary form naming Adam Madow as the sole beneficiary under the contract. Adam Madow is the son of Robert Madow. Adam Madow, Andrew Marvel and Phyllis Sachs have each submitted a claim for the proceeds of the annuity contract. Andrew Marvel is the stepson of the Decedent and Phyllis Sachs is a first cousin of the Decedent.
Andrew Marvel and Phyllis Sachs have counterclaimed for negligence, negligent supervision, tortious interference with contract, breach of fiduciary duty, fraud and imposition of a constructive trust. The Marvel and Sachs also asserted claims in a Third-Party Complaint against Robert Madow and R. Madow & Sons, Inc. These two Third-Party Defendants are charged with tortious interference with contract, breach of fiduciary duty, fraud, undue influence and imposition of a constructive trust. Marvel and Sachs contend that Robert Madow submitted fraudulent change in beneficiary forms, first trying to name himself as beneficiary and then changing the beneficiary on the annuities to his son, Adam Madow. The Madow Parties deny all claims asserted against them.
A. Summary Judgment Motion
The Madow Parties contend that summary judgment is appropriate here because Marvel and Sachs are "incapable of producing evidence to sustain their claims, whereas the Madow Parties have put forth evidence that there were no improper actions in the designation of Adam Madow as a beneficiary of the deceased's annuities." It is the Madow Parties' contention, that in order for Marvel and Sachs "to maintain a viable claim, they must do more than assert allegations; they must set forth evidence, in rebuttal to the evidence by [the Madow Parties], which they are not capable of doing."
In response, Marvel and Sachs contend that genuine issues warranting a trial exist and that, in any event, discovery has not yet started. Marvel and Sachs argue that "the filing of this motion for summary judgment . . . is nothing more than a bad faith attempt to obtain a favorable judgment while circumventing -- or at least short-circuiting -- the discovery process." Marvel and Sachs seek the imposition of costs in the event the Court denies the Madow Parties' motion for summary judgment. On November 21, 2008, Marvel and Sachs submitted a letter motion, requesting permission to file supplemental evidence in support of their opposition to Madow Parties' motion for summary judgment and attaching recently obtained medical records containing comments and/or observations of the Decedent. [DE 66] The Madow Parties have opposed that motion. [DE 67] These additional medical records are not essential to my decision on the motion for summary judgment at this juncture. Therefore, I am DENYING, without prejudice, Marvel and Sachs' motion to supplement the record.
In their reply, the Madow Parties argue that Marvel and Sachs have failed to comply with the requirements of Federal Rule of Civil Procedure 56(f) with respect to their request for additional discovery and have failed to raise any genuine issue of material fact in their opposition to the motion with regard to the claim of undue influence.
B. Motion to File Amended Answer With Counterclaims and Amended Third-party Complaint
Marvel and Sachs have sought permission to file an Amended Answer with Counterclaims and cross-claims and as well as an Amended Third-Party Complaint. According to Marvel and Sachs "all of the claims contained in both the proposed amended answer and proposed amended third-party complaint are identical to the claims contained in the original pleadings, with the exception of the fourth claim for conversion contained in the proposed amended third-party complaint." Affirmation of Daniel Cahn ¶ 8.
The Madow Parties' only opposition to the motion to amend is that the proposed amendment is futile in light of the Madow Parties' ...