Summary
In Albee Homes, Inc. v. Lutman, 47 F.R.D. 258 (E.D.Pa.), aff'd, 406 F.2d 11 (3d Cir. 1969), Judge (now Chief Judge) Joseph S. Lord, III denied plaintiffs' motion for leave to amend their answer to a counterclaim to plead a release, five years after the start of the lawsuit and on the eve of the second trial, where it appeared that the facts forming the basis of the proposed amendment were known to plaintiffs from the commencement of the lawsuit.
Summary of this case from Matlack, Inc. v. Hupp Corp.Opinion
On plaintiffs' motion for leave to amend their answer to defendant's counterclaim in order to plead a release, the District Court, Joseph S. Lord, III, J., held that where case went to trial on basis of District Court's ruling, since affirmed, that plaintiffs were not entitled to show release in defense of counterclaim, and in reliance on such ruling defendant went to considerable effort to litigate the fraud issue on the merits and to obtain a new trial on that issue based upon an error in the District Court's charge, plaintiffs' motion for leave to amend their answer to the counterclaim in order to plead a release five years after start of the lawsuit would work substantial prejudice to defendant and hence would be denied.
Motion denied.
Modell, Pincus, Hahn & Reich, by Pace Reich, Philadelphia, Pa., for plaintiffs.
Goodis, Greenfield, Narin & Mann, by Allen J. Levin, Philadelphia, Pa., for defendant.
MEMORANDUM AND ORDER
JOSEPH S. LORD, III, District Judge.
Plaintiffs have moved for leave to amend their answer to defendant's counterclaim in order to plead a release. The essential facts relating to the release are set forth in Judge Kalodner's OPINION of Appeals when this case was before it on plaintiffs' appeal. 406 F.2d 11 (C.A. 3, 1969). Those facts have not altered in the meantime. It still remains true that plaintiffs waited over three years to attempt to assert a defense that was known to them from the start of the lawsuit. We thought at the time of trial, and we think now, that this is undue delay.
The mere fact that the case may not be re-tried for a few months does not obliterate the delay that has already occurred. And plaintiffs have yet, even in the motion to amend, furnished not one word of explanation or excuse for the delay. As the Court of Appeals pointed out, the Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) set forth a variety of factors which will warrant denial of leave to amend. As we read Foman, undue delay, standing alone and not necessarily accompanied by prejudice to the opposing party, is one of those factors.
The fact is, however, that defendant would be prejudiced by allowance of the amendment. The case went to trial on the basis of our ruling, since affirmed, that plaintiffs were not entitled to show the release in defense of the counterclaim. In reliance on this ruling, defendant went to considerable effort to litigate the fraud issue on the merits and to obtain a new trial on that issue based upon an error in our charge. To vitiate now that effort by permitting an amendment five years after the start of the lawsuit would, we think, work substantial prejudice to defendant.
Finally, it is not unlikely that were the amendment to be allowed now, both sides would require substantial additional discovery at a time when the period for discovery has long since been closed. For the foregoing reasons, plaintiffs' motion for leave to amend their answer to defendant's counterclaim will be DENIED.
It is so ordered.