Opinion
Civil Action No. 04-cv-01941-MSK-OES.
November 16, 2005
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Plaintiff has filed a motion in which she asks leave of court to file a second amended complaint. The amended complaint would seek to accomplish two goals: (1) to amend plaintiff's name to Tammy E. Fells, and (2) to add a prayer for exemplary damages.
Defendant does not oppose plaintiff's effort to amend the caption to reflect her changed named. However, it opposes the motion to the extent that it seeks to add a prayer for exemplary damages. Defendant argues that the amendment should not be allowed because it would be futile. In its view, all of the claims raised by plaintiff in this action are subject to dismissal because they were resolved between plaintiff and defendant prior to the filing of this case. In defendant's view, plaintiff is barred from proceeding in this case by virtue of the doctrine of promissory estoppel. Additionally, defendant argues that plaintiff has obtained no new facts during discovery that would allow her to amend her complaint.
DISCUSSION
Plaintiff demonstrates in her Reply that she has obtained new facts to warrant an amendment to her complaint. Defendant's argument with regard to promissory estoppel should be raised in a motion to dismiss or for summary judgment. At this stage, the court is not in a position to find that the amendment that plaintiff seeks to make is barred by futility.
ORDER
It is therefore ORDERED that plaintiff's Motion for Leave to File Second Amended Complaint [Doc. 33, filed 10-14-05] is GRANTED, and her tendered Second Amended Complaint is RECEIVED FOR FILING.