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Lssi Data Corp v. Time Warner Cable

March 20, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff LSSi Data Corp. ("LSSi") seeks leave to add its corporate parent, VoltDelta Resources LLC ("Volt"), as a party plaintiff in this action. Defendant Time Warner Cable, Inc. ("TWC") opposes the addition of Volt as a party at this stage of the case. For the following reasons, LSSi's motion is denied without prejudice to its right to make the same motion after LSSi's pending motion for a preliminary injunction has been resolved.


This declaratory judgment action, and an attendant motion for a preliminary injunction, were initially filed on July 5, 2011 in the U.S. District Court for the Northern District of Georgia. LSSi's Complaint alleges that TWC has unlawfully withheld from it directory assistance listing data to which it is entitled under certain provisions of the Communications Act of 1934, 47 U.S.C. §§ 202, 222(e), and 251(b)(3). LSSi seeks preliminary injunctive relief compelling TWC to provide this data immediately.

By order dated November 1, 2011, the Hon. Charles A. Pannell, Jr., United States District Judge, granted TWC's motion to transfer this case to the Southern District of New York. On December 13, 2011, this Court endorsed a civil case management order providing for re-briefing of LSSi's preliminary injunction motion with Second Circuit case law, and for pre-motion discovery requested by TWC. The parties' supplemental briefing on LSSi's motion for a preliminary injunction will be complete on March 21, 2012; the Court has set a hearing on the motion for April 19, 2012. On February 14, 2012, LSSi filed this motion to add Volt as a party plaintiff. On February 27, 2012, TWC filed a brief in opposition. On March 5, 2012, LSSi submitted a reply.

In support of its motion to add Volt as a plaintiff, LSSi argues that joinder should be permitted pursuant to Federal Rules of Civil Procedure 15, 20, and 21. In support of its Rule 15 argument, LSSi asserts that: (1) it has not acted in bad faith or unduly delayed by waiting until February 14, 2012 to file this motion because it repeatedly assured TWC that LSSi and Volt are functionally interchangeable and are viewed as a single entity in the marketplace; (2) TWC will not be prejudiced because LSSi's responses to TWC's discovery requests would not have been different had Volt been a party plaintiff; and (3) Volt's joinder would not result in the assertion of futile claims. In support of its argument under Rule 20, LSSi claims that Volt, as a plaintiff, would assert claims arising out of similar conduct by TWC and that questions of law and fact would be common to LSSi's and Volt's claims. In requesting joinder under Rule 21, LSSi argues that adding Volt at this juncture would be "just."

In opposition, TWC argues that: (1) LSSi has unduly delayed its motion to amend, because it has known of the intertwined interests of LSSi and Volt for at least six months, yet only now, at the close of discovery with respect to LSSi's motion for a preliminary injunction, seeks Volt's joinder; (2) LSSi is acting in bad faith because the testimony of its personnel that Volt and LSSi are interchangeable is contradicted by documentary evidence and was concocted to support an application for joinder; and (3) TWC would be severely prejudiced by Volt's addition as a party plaintiff deep into the briefing of LSSi's (and, potentially, Volt's) motion for a preliminary injunction.


As noted, LSSi seeks leave to join Volt as a party plaintiff pursuant to Rules 15, 20, and 21. The Court analyzes LSSi's arguments under each Rule in turn.

A.Rule 15

Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint shall be "freely" given when "justice so requires," although "a district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200--01 (2d Cir. 2007). Because the Court concludes that the addition of Volt would be prejudicial to TWC and that Volt's addition is unduly delayed, it does not address TWC's argument that LSSi is acting in bad faith.


"[T]he prejudice to the opposing party resulting from a proposed amendment [i]s among the 'most important' reasons to deny leave to amend." AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010) (quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). "Undue prejudice arises when an 'amendment [comes] on the eve of trial and would result in new problems of proof.'" Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (quoting State Teachers Ret. Bd., 654 F.2d at 856). Prejudice may also be found when, at a critical juncture of a case, a proposed amendment "'adds new parties or at least entails more than an alternate claim or a change in the allegations of a complaint.'" Reape v. Berrios, No. 09-cv-1363, 2011 U.S. Dist. LEXIS 44862, at *6--7 (E.D.N.Y. Mar. 29, 2011) (Report and Recommendation) (quoting State Farm Mut. Auto. Ins. Co. v. CPT Med. Servs., P.C., 246 F.R.D. 143, 148--49 (E.D.N.Y. 2007)).

The Court is persuaded that adding Volt at this stage of the litigation would significantly prejudice TWC. The success of LSSi's claim of entitlement to TWC's data turns largely on whether LSSi falls within one or more statutory classifications. These include whether LSSi is a certified local exchange carrier, see 47 U.S.C. § 251(b)(3), or serves as an agent of such a carrier for the purpose of providing directory assistance services. Id.; see also Provision of Directory Listings Information Under the Communications Act of 1934, as Amended, First Report and Order, 16 FCC Rcd. 2736 at ¶¶ 12--13 (2001). Throughout the first eight months of this litigation, including during extensive discovery in support of LSSi's pending motion for a preliminary injunction to obtain this data, TWC (and the Court) reasonably assumed that ...

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