Summary
considering withdrawal of claims under Rule 15
Summary of this case from Bosco v. United StatesOpinion
09 Civ. 7589 (LAK) (KNF).
March 25, 2010
MEMORANDUM and ORDER
On March 1, 2010, the final date by which the parties could move to amend their pleadings under the case management plan set by the assigned district judge, the plaintiff filed a motion for leave to file a third amended complaint. The proposed Third Amended Complaint ("TAC") eliminates allegations that the defendants misappropriated the source code for the plaintiff's SyndTrak Software and withdraws claims made previously for trade dress infringement and unfair competition under the Lanham Act. The plaintiff seeks to make these amendments "in order to streamline the litigation, and to avoid the substantial costs attendant to examining and comparing the parties' source code and proving out [the] trademark infringement claims." The defendants, who have yet to answer or move with respect to the Second Amended Complaint, do not oppose the plaintiff's motion, but request that the Court dismiss, with prejudice, the claims the plaintiff seeks to withdraw voluntarily in its proposed TAC.
All references to the Third Amended Complaint, in this Memorandum and Order, are to the document annexed, as Exhibit 1, to the Reply Affidavit of Mark H. Moore. See Docket Entry No. 46-2.
Fed.R.Civ.P. 15(a)(2) provides that a "court should freely give leave [to amend] when justice so requires." A motion to amend a complaint should be granted absent evidence of, inter alia, undue delay, bad faith by the moving party, or prejudice to the non-moving party. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). "In gauging prejudice, [courts] consider, among other factors, whether an amendment would 'require the opponent to expend significant additional resources to conduct discovery and prepare for trial' or 'significantly delay the resolution of the dispute.'" Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (quotingBlock v. First Blood Assocs., 988 F.2d 344, 350 [2d Cir. 1993]).
In this case, no responsive pleading has been filed to the Second Amended Complaint. The parties have engaged in minimal pretrial discovery. The plaintiff's proposed TAC narrows the scope of the litigation, which will save the parties and the court time and expense. See Fed.R.Civ.P. 1 (providing that the Federal Rules of Civil Procedure "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding"). Considering these factors, and absent a showing, by the defendants, of any prejudice or bad faith, it is appropriate to grant the plaintiff's motion, for leave to file its TAC.
The Court declines to entertain the defendants' request that the Court dismiss, with prejudice, the claims the plaintiff withdraws in its proposed TAC, as the defendants failed to comply with Local Civil Rule 7.1(a) of the Local Rules of United States District Courts for the Southern and Eastern Districts of New York.
For the reasons explained above, IT IS HEREBY ORDERED that the plaintiff file its Third Amended Complaint, with the Clerk of Court, and serve it on the defendants, on or before March 29, 2010.
This order resolves Docket Entry No. 38.
SO ORDERED.