Blue Rhino Corp. v. Propane

Full title: BLUE RHINO CORP., et al. Plaintiff(s), v. WHITE ROSE PROPANE, et al…

Court: United States District Court, D. Utah, Central Division

Date published: Jun 8, 2004

Case No: 2:02 CV 1165 TS (D. Utah Jun. 8, 2004)

Opinion

Case No: 2:02 CV 1165 TS.

June 8, 2004

ORDER GRANTING MOTION TO AMEND

DAVID NUFFER, Magistrate Judge (Part-time)

Plaintiffs seek leave to amend their reply to the counterclaim to raise the statute of limitations defense.¹ Defendants argue against the motion,² saying it is untimely, pointing out it is made six months after the pleadings amendment deadline and only three months before trial. Defendant says the facts suggesting the defense were known long ago, making the motion late and that the amendment is futile for reasons pointed out in a concurrently briefed motion for summary judgment. This order grants the motion to amend.

1 Motion for Leave to File Amended Reply to White Rose's Second Amended Counterclaim, docket no. 117, filed May 12, 2004.

2 Defendants's Memorandum in Opposition to Plaintiffs' Motion for Leave to File Amended Reply to White Rose's Second Amended Counterclaim (Opposing Memorandum), docket no. 122, filed May 27, 2004.

Discussion

Plaintiff moved for summary judgment on the counterclaim, asserting the statute of limitations defense.³ Plaintiff sought a stipulation to amend to raise this defense, and that effort failing, made this motion to amend.⁴

The statute of limitations issue has been briefed by both parties,⁵ and merits adjudication. Defendant cites a case affirming a denial of amendment to add a party.⁶ The case does say that untimeliness alone may support denial of a motion to amend.⁷ However, each motion to amend is unique and requires exercise of discretion.

5 Id. at 2-3 and Defendants' Memorandum in Opposition to Plaintiffs' Motion for Partial Summary Judgment, docket no. 121, filed May 24, 2004, at 36-39.

6 Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir. 1993).

7 Id. at 1365.

This is not a motion to add an entirely new claim or a new party. Plaintiff seeks to amend to add a defense to an existing claim. The defense is suggested by the facts, which Defendant asserts have been known for some time. The essential facts as to timing have been discovered as other facts were developed. Defendant offers no concrete statement of prejudice it would suffer if the amendment is permitted, and admits that "it is difficult to say in retrospect what [Defendant] would have done had a statute of limitations defense been asserted earlier."⁸ The issues raised by the defense is extensively briefed and may be dispositive of some claims. Addition of the defense will enable consideration of all issues on the pending motion and at trial.

8 Opposing Memorandum at 6.

ORDER

IT IS HEREBY ORDERED that the Motion for Leave to File Amended Reply to White Rose's Second Amended Counterclaim, docket no. 117, filed May 12, 2004, is GRANTED.