Opinion
Case No. 04-2162-JWL.
October 28, 2004
MEMORANDUM AND ORDER
Plaintiff Ambrose Packaging, Inc. filed this lawsuit alleging a single cause of action against defendant FlexSol Packaging Corp. for tortious interference with a prospective business advantage. In an order dated September 16, 2004, the court granted defendant's motion to dismiss with prejudice with respect to plaintiff's tortious interference claim and without prejudice to plaintiff filing a motion on or before October 1, 2004, seeking leave to amend her complaint to assert a claim for breach of contract. The matter is presently before the court on plaintiff's motion for leave to amend complaint (doc. 20) to assert a claim for breach of contract. Defendant opposes the motion, arguing that the proposed amendment would be futile because the proposed pleading fails to state a claim upon which relief can be granted. For the reasons explained below, the court will grant plaintiff's motion to amend.
LEGAL STANDARD
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading once as a matter of course or, after a responsive pleading has been filed, "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The decision whether to grant leave to amend is within the discretion of the district court. Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001). The court may justifiably refuse leave to amend on the grounds of undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A motion to amend may be denied as futile "if the proposed amendment could not have withstood a motion to dismiss or otherwise failed to state a claim." Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir. 1990).The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quotation omitted).
DISCUSSION
In this case, plaintiff's proposed third amended complaint alleges that a third party, International Multi-Foods, contacted plaintiff because of problems that International Multi-Foods was having with its packaging product. Plaintiff worked with defendant to solve this problem by developing a new packaging product that plaintiff could sell to International Multi-Foods. The end result was an agreement between plaintiff and defendant whereby plaintiff would receive the orders from International Multi-Foods and defendant would fill those orders for plaintiff. Plaintiff was to receive a profit from the sales and defendant also received a profit from the sales pursuant to the contract between the plaintiff and defendant. This agreement created an oral and implied agreement between the parties and can be proven by written documents and oral testimony. The proposed pleading alleges that defendant breached the contract between plaintiff and defendant by contacting International Multi-Foods directly and selling the packaging products directly to International Multi-Foods in violation of the agreement between plaintiff and defendant.
Defendant argues that this proposed pleading fails to state a claim because there is no allegation that the contract between plaintiff and defendant was some type of exclusive arrangement that prohibited defendant from selling directly to International Multi-Foods. While defendant's argument in this regard may or may not ultimately prove to have some merit based on the facts of the case, the standard for evaluating a motion to dismiss is whether it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle plaintiff to relief. In this case, the proposed complaint states that the evidence of the oral and implied agreement will come from written documents and oral testimony. It can certainly be reasonably inferred that an examination of this evidence may reveal that the parties' agreement encompassed a corresponding intent that defendant would be prohibited from selling directly to International Multi-Foods and cutting plaintiff out of the middle of the arrangement. If so, defendant would have breached the parties' contract. Thus, until the substance of the parties' agreement is clarified, it certainly cannot be said that it appears beyond a doubt that plaintiff's claim is without merit. Accordingly, the court is unpersuaded that plaintiff's proposed third amended complaint necessarily fails to state a claim upon which relief can be granted, and consequently the court will not deny plaintiff leave to amend based on the alleged futility of the proposed amendment.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's motion for leave to amend complaint (doc. 20) is granted. Plaintiff shall file and serve the third amended complaint in accordance with D. Kan. Rule 15.1.
IT IS SO ORDERED.