Opinion
Case No. C-1-02-243
September 24, 2002
Gerald Francis Kaminski, US Attorney, Cincinnati, OH, and Michael R. Pahl, US Department of Justice Tax Division Washington, DC., for UNITED STATES OF AMERICA plaintiff.
Robert W Welti, Ripley, OH., for ROBERT W WELTI, individually and dba Bopat Enterprises defendant.
ORDER
This matter is before the Court on Plaintiff's Motion to Amend Complaint (Doc. 10). As of the date of this Order, Defendant has filed no response to said motion.
Defendant previously filed a "Notice of Non-compliance and Notice of Non-Agreement to Amend Complaint" whereby Defendant withdrew his consent to allow Plaintiff to amend the Complaint. (Doc. 7). Because this "Notice" constitutes merely a withdrawal of his previously granted consent, it does not constitute a response to Plaintiff's Motion to Amend Complaint.
In its Complaint, Plaintiff incorrectly named defendant Robert C. Welti as "Robert W. Welti." Plaintiff now seeks to amend its Complaint to correct a typographical error.
Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely given when justice so requires." In considering a motion for leave to amend, courts look at several factors; (1) undue delay in filing; (2) bad faith; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to opposing party; and (5) futility of amendment. Interroyal Corp. v. Sponseller, 889 F.2d 109, 112 (6th Cir. 1989). Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973).
Pursuant to S.D. Ohio Civ. R. 7.2(a)(2), "[f]ailure to file a memorandum in opposition may be cause to grant any motion as filed. . . ." As such, Plaintiff's motion is hereby GRANTED. Plaintiff shall file the Amended Complaint with this Court and serve Defendant Welti with a copy of same.
IT IS THEREFORE ORDERED THAT:
1) Plaintiff's Motion to Amend Complaint (Doc. 10) be GRANTED. Plaintiff shall file the Amended Complaint with this Court and serve Defendant Welti with a copy of same.
SO ORDERED.