The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
Plaintiff New Hampshire Insurance Company ("NHIC") moves to amend its complaint to add a sixth cause of action asserting that defendant Total Tool Supply, Inc. violated the Minnesota Consumer Fraud Act through "fraud, false pretense, false promise, misrepresentation, misleading statements and/or deceptive practices employed and intended to be relied upon in the sale and subsequent inspections of . . . [defendant's] nylon web sling." (Dkt. No. 27: Notice of Motion; Dkt. No. 28: Glynn Aff. Ex. A: Proposed 2d Am. Compl. ¶¶ 54-68.) Total Tool responds that amendment would be futile and also that Total Tool would be prejudiced by the amendment. (Dkt No. 33: Total Tool Am. Opp. Br. at 3, 7-14.)
For the reasons set forth below, NHIC's motion for leave to amend its complaint is DENIED as futile.
On June 6, 2008, NHIC commenced this action against Total Tool, alleging design and manufacturing defect, failure to warn and negligent inspection claims regarding a "marine lifting sling" manufactured by Total Tool. (Dkt. No. 1: Compl. ¶ 4.) On June 19, 2008, NHIC amended it complaint, adding a fifth cause of action for breach of implied and express warranties. (See Dkt. No. 4: Am. Compl. ¶¶ 46-53.)
On September 12, 2008, Judge McMahon issued a Case Management Plan establishing, among other things, a deadline for amending the pleadings of October 31, 2008 and setting a discovery cut-off date of January 30, 2009. (Dkt. No. 9: 9/12/08 Case Management Plan ¶¶ 4, 6.) Judge McMahon later extended discovery through April 19, 2009. (Dkt. No. 10: 1/13/09 Order.) On March 10, 2009, the parties consentedto jurisdiction by this Court for all purposes under 28 U.S.C. § 636(c). (See Dkt. No. 11: 3/11/09 Consent to Jurisdiction Order.) After the current motion to amend was filed, this Court extended discovery through May 22, 2009. (See Dkt. No. 30: 4/30/09 Order.)
On April 28, 2009, NHIC filed the present motion to amend the complaint pursuant to Fed. R. Civ. P. 15(a).*fn1 (Dkt. No. 27: Notice of Motion; Dkt. No. 28: Glynn Aff. Ex. A: Proposed 2d Am. Compl.; Dkt. No. 29: NHIC Br.) NHIC's proposed second amended complaint would add a sixth cause of action alleging that Total Tool violated the Minnesota Consumer Fraud Act through "fraud, false pretense, false promise, misrepresentation, misleading statements and/or deceptive practices employed and intended to be relied upon in the sale and subsequent inspections of . . . [defendant's] nylon web sling." (Glynn Aff. Ex. A: Proposed 2d Am. Compl. ¶¶ 54-68.)
Total Tool argues that NHIC's "proposed amendment is futile and meritless" because it "seeks to add a claim pursuant to [the] Minnesota . . . . Consumer Fraud Act [that] does not grant individual consumers a private right of action" unless "the plaintiff . . . demonstrate[s] a public interest." (Dkt. No. 33: Total Tool Am. Opp. Br. at 11-14.) Total Tool also argues that NHIC "unreasonably delayed . . . seeking to amend the amended complaint for a third time and [Total Tool] will be unduly prejudiced by any amendment at this time." (Total Tool Am. Opp. Br. at 7-11.)
This Court's opinion in Turkenitz v. Metromotion discusses the law concerning granting leave to amend under Rule 15(a) and the potential prejudicial effect of proposed amendments:
Rule 15(a) of the Federal Rules of Civil Procedure instructs that "leave [to amend] shall be freely given when justice so requires."
Analysis of any motion to amend starts with the Supreme Court's decision in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227 (1962):
Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires'; this mandate is to be heeded. 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 ...