Opinion
Case No. 2:03 CV 0578 TC.
July 14, 2004
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO AMEND COMPLAINT
Plaintiff, Zoller Laboratories (Zoller) has filed two motions seeking leave to amend its complaint. The Court has read the corresponding memoranda and has determined that oral argument would not be helpful. See Utah Local Rule 7-1(f). The Court having considered the memoranda and relevant case law hereby enters the following order:
Plaintiff's first amended complaint seeks to "clarify existing causes of action and to include one new cause of action." Pla.'s First Mtn. to Amend p. 1. Defendant only opposes two aspects of the proposed First Amended Complaint. See Mem. in Opp to Pla.'s First Mtn. to Amend p. 2. First, Defendant opposes Plaintiff's inclusions of a jury demand See id. at p. 3. Second, Defendant opposes Plaintiff's sixth cause of action that seeks attorney's fees and costs pursuant to Utah Code Ann. § 78-27-56. See id. at 14.
Accordingly, the Court grants Plaintiff's Motion to Amend in regard to
(1) clarify that Zoller's claim for false advertising is based on both literal falsity by necessary implication, and implied falsity; and
(2) clarify/conform the pleadings to include an express allegation that Defendant's choice of the confusingly similar name, ZN-3, also conveys a false and confusing message to consumers that ZN-3 is a generic equivalent of Zantrex™-3.
Pla.'s First Reply p. 3.
Zoller argues that because it has "raised a new claim for attorneys fees under Utah Code Ann. § 78-27-56" then it is entitled to a jury trial on at least this new claim and perhaps more issues pursuant to Rule 39. Id. at p. 5. The law is quite clear, however, that an amended complaint which merely clarifies facts or asserts new legal theories of recovery while based on the same core facts does not reestablish a right to demand a jury trial when that right has already been waived in the original complaint. See Nissan Motor Corp. In U.S.A. v. Burciaga, 982 F.2d 408, 409 ("To establish a right to a trial by jury, the amended complaint must do more than merely raise new theories of recovery based on the same facts as those issues raised in the original complaint."); American Home Products Corp. v. Johnson Johnson, 111 F.R.D. 448, 451 (denying a request for a jury because the amended complaint failed to raise any new issues that warranted a jury trial).
After reviewing the original complaint and the amended complaint, the Court finds that the circumstances of this case do not warrant the exercise of the Court's discretion to order a jury trial. See Fed.R.Civ.P. 39(b). The amended complaint asserts a new theory of recovery, to wit, attorney fees pursuant to Utah Code Ann. § 78-27-56 that is based on the withdrawal of Defendant's counterclaim. A new theory of recovery based on the same core facts as in the original complaint does not establish a right to a trial by jury. See Nissan 982 F.2d at 409.
Furthermore, it is clear from the record that Plaintiff did not seek a jury trial in its original complaint and the scheduling order sets this case for a six-day bench trial. See Docket no. 28. Accordingly, Plaintiff's request for a jury trial is denied.
Finally, in regard to Plaintiff's first motion for leave to amend, Plaintiff seeks to bring a claim for attorneys fees pursuant to Utah Code Ann. § 78-27-56. Section 78-27-56 provides in relevant part, "[i]n civil actions, the court shall award reasonable attorney's fees to a prevailing party if the court determines that the action . . . was without merit and not asserted in good faith. . . ." U.C.A. § 78-27-56(1) (2002). Defendant's argue that this claim is futile because Plaintiff did not prevail on Defendant's counterclaim because it was voluntarily withdrawn.
While Defendant's interpretation is plausible, the Court finds that it is appropriate for Plaintiff to test Defendant's stated reasons for dismissing its counterclaim. Some courts have concluded that a voluntary dismissal by a party may be the basis for recovery of attorneys fees. See Allahvari v. Carter Subaru, 897 p. 2d 413, 414-16 (Wash.Ct.App. 1995) (holding plaintiff's voluntary dismissal could provide defendant with a basis to be awarded attorneys fees under the Washington statute). This claim is not complex and should not be difficult for the Court to decide.
Accordingly, the Court GRANTS Plaintiff's motion to amend its complaint with this cause of action.
Plaintiff's second motion for leave to amend seeks to "add a single, additional claim under the Utah Truth in Advertising Act (TAA)." Pla.'s Second Mtn. to Amend p. 2. Defendant does not oppose the addition of an additional claim under the TAA in Plaintiff's second amended complaint. See Mem. in Opp. to Pla.'s Second Mtn. to Amend p. 1-2.
Accordingly, the Court HEREBY GRANTS Plaintiff's Motion to Amend as to the TAA claim.
Plaintiff's also includes a request for a jury trial in its Second Amended Complaint. However, for the reasons statedsupra, the Court finds Plaintiff's request for a jury trial unavailing. Once again, this is a new theory of recovery based on the same core facts, therefore, the Court DENIES Plaintiff's request for a jury trial. See Nissan, 982 F.2d at 409. This issue is to be tried before the bench along with the other issues in this case.
Based on the foregoing, Plaintiff's motions to file an amended complaint are GRANTED in PART and DENIED in PART. Plaintiff is to file an amended complaint in accordance with the Court's order within 30 days of the entry of this order.