MEMORANDUM

MICHAEL BAYLSON, District Judge

The Development Group, LLC and Parsons Road Development Group, Ltd. (herein "Plaintiffs") filed a Motion for Leave to Amend Complaint on June 23, 2004. The Franklin Township Defendants and John S. Halsted filed separate briefs opposing the motion on July 8, 2004. Plaintiffs filed a reply brief on July 21, 2004. For the reasons that follow, Plaintiffs' motion will be denied.

On May 5, 2003, Plaintiffs filed a complaint under 42 U.S.C. § 1983, wherein Plaintiffs alleged violations of their rights to substantive due process, equal protection, and procedural due process in connection with the denial of their application for preliminary plan approval to build residential housing in Franklin Township. In its September 24, 2003 Order, this Court granted, in part, the Franklin Township Defendants' Motion to Dismiss, dismissing Plaintiffs' equal protection and procedural due process claims, but granting Plaintiffs twenty days to amend the equal protection count with the necessary specificity. Plaintiffs did not file the amendment. The Court also set an initial discovery deadline of April 30, 2003, which was subsequently amended twice by stipulation of the parties to July 30, 2004. I. Legal Standard

Fed.R.Civ.P. 15 provides the standard for amending a pleading:

(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Grant of leave to amend is within the discretion of the district court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971). Factors to be considered in determining whether leave should be granted include undue delay, bad faith, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, and futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227; 9 L. Ed. 2d 222 (1962).

II. Plaintiffs' Motion to Amend

A. Parties' Contentions

Plaintiffs are requesting leave to amend their complaint to add new Defendants and to make substantive additions to their claim. Specifically, Plaintiffs seek to add claims for equal protection and takings and to add Vaughn Charlton and Theodosia Price as Defendants. Plaintiffs argue that the discovery process has yielded facts supporting their equal protection and takings claims and that new developments since the filing of the Complaint support these claims. Plaintiffs also argue that the events giving rise to claims against Charlton and Price have taken place since the filing of the Complaint. Plaintiffs maintain that the Defendants will not be prejudiced by this amendment.

Defendants oppose the amendment, arguing that they will be prejudiced by it. Specifically, Defendants state that the proposed amended complaint will require them to redepose all of the previously deposed witnesses and would open up a new line of discovery. Defendants also dispute Plaintiffs' contention that the amended complaint is based on newly discovered information, arguing that this information has been in public records to which Plaintiffs have had access for over a year.

B. Analysis

Although the Plaintiffs title their motion a "Motion to Amend," it is, at least in part, a motion to supplement the pleadings, as some of the facts presented in support of both their substantive additions and the addition of two new Defendants occurred after the filing of the Complaint. Regardless of whether the Court construes Plaintiffs' motion as one to amend or one to supplement, one of the issues the Court must determine is whether allowing such an amendment is fair to the Defendants in this case.

In this case, Plaintiffs were given permission by the Court to amend their equal protection claim within twenty days of the Court's September 24, 2003 Order, but Plaintiffs did not do so. Plaintiffs assert that they did not have the specific facts which the Court's September 24, 2003 Order implied were necessary, and did not receive those additional facts until substantial discovery had taken place in the spring of 2004. Plaintiffs assert that the fact that they did not make the amendment, when allowed to do so without a separate motion to amend, should not prejudice their attempt to make such an amendment under the procedures and standards set forth in Rule 15.

Plaintiffs' legal argument, at least in the abstract, is correct. However, it appears that a substantial amount of time was taken between the Court's Order of September 24, 2003 and the Motion to Amend filed on June 23, 2004, with settlement discussions among the parties, as well as actual discovery. The existence of settlement discussions is relevant, but once the settlement discussions were concluded, apparently in early January 2004, and the parties actively participated in discovery, the Court concludes that at least the amendment as to the equal protection claim could have been presented much earlier.

Although the Plaintiffs have taken a significant amount of time to seek to amend their complaint, this delay, in itself, is not disallowed by Fed.R.Civ.P. 15. Rather, the question for this Court is whether Plaintiffs have caused "undue delay" or prejudice to the Defendants in seeking to amend the complaint. "[T]he passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become "undue," placing an unwarranted burden on the court, or will become "prejudicial," placing an unfair burden on the opposing party."Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984), cert. denied, 469 U.S. 1122, 83 L. Ed. 2d 799, 105 S. Ct. 806 (internal citations omitted).

Courts have found that a motion to amend a complaint is reasonably denied when the motion comes as a case is approaching trial. See Lindquist v. Buckingham Twp., 2004 U.S. App. LEXIS 14922, 17-19 (3d Cir., 2004) (unpublished) (finding that a district court did not abuse its discretion in denying a motion to amend a complaint where the case had been pending for two years and was approaching trial). Courts have also found that a motion to amend a complaint causes prejudice to the opposing party when the amended complaint would raise new facts and require additional discovery. See Richardson v. Frank, 1989 U.S. Dist. LEXIS 13355 (E.D. Pa. 1989) (denying leave to amend a complaint, where the motion to amend was filed twenty days before the discovery deadline and within two months of the action entering the trial pool, because defendants would be prejudiced by the need to reopen discovery and the delay of trial). See also Adams, 739 F.2d 858 (vacating a district court's denial of a motion to amend, finding that defendants would suffer no prejudice because the amendment would raise no new facts and would not require additional discovery).

Here, Plaintiffs filed their motion to amend their complaint within five weeks of the close of discovery, which has already been extended, and their reply brief was filed within days of the close of discovery. One motion for summary judgment is pending and the other Defendants are presumptively using the discovery record as it now exists to prepare motions for summary judgment which are due September 10, 2004. If Plaintiffs were allowed to amend their complaint at this time, there could be motions to dismiss the new claims under Rule 12, and also motions to dismiss asserted by the newly named defendants. If these motions were denied, in all or part, discovery would have to be extended for a not insignificant period of time so that the parties could develop the record with regard to both the new substantive claims and the two new defendants. The Defendants would then have to re-file dispositive motions based on this additional discovery and the trial pool date, now scheduled for October 18, 2004, would be delayed, probably into 2005. The Defendants already named in this case have a right to have a disposition of this case in a timely manner, but the amendment of Plaintiffs' complaint would undoubtedly delay that disposition. Thus, this Court concludes it should deny Plaintiffs' Motion on the basis that amending the complaint would cause undue prejudice to the present Defendants.

The Court, as well as Defendants, recognize that Plaintiffs can file a new complaint making the claims they seek to add through an amended complaint, and also may name the two individuals who they seek to add to this case, as defendants in the new complaint. The present Defendants must realize that they may find themselves facing two successive trials. On the other hand, assuming dispositive motions are filed by Defendants, and denied in whole or part, the Court may try this case promptly, or may on motion determine to delay the trial of this case, require expeditious discovery of the new case, and assuming the claims in the new case are sufficient for trial, consolidate both cases for trial. On the other hand, it is possible that the dispositive motions which Defendants may file by September 10, 2004 will indeed be dispositive, thus leaving only the new case for litigation. The Court takes no view on the merits, and notes that the parties have vigorously disputed whether the new claims that are proposed, and the claims against the new defendants, will state claims sufficient to survive a Rule 12 motion to dismiss. The Court does not make any ruling on these contentions, but only decides that the Motion to Amend will be denied because it comes too late, and the present Defendants are entitled to resolution of at least their dispositive motions, or a trial, assuming one will be required. Stated differently, the Court finds it is more just to the Defendants currently named in this suit to require Plaintiffs to file a new suit than to delay the outcome of this case.

IV. Conclusion

For the reasons stated above, the Court finds that Plaintiffs' Motion to Amend the Complaint would cause undue delay and prejudice to the Defendants. Therefore, Plaintiffs Motion will be denied.

An appropriate order follows.

ORDER