United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT (Dkt. 52) SUBJECT TO CONDITIONS
MARK A. GOLDSMITH, District Judge.
This matter is presently before the Court on Plaintiff's motion for leave to file a second amended complaint (Dkt. 52). The parties have fully briefed the issues, and a hearing was held on February 26, 2015. As explained fully below, the Court grants Plaintiff's motion subject to certain conditions.
In this action, Plaintiff alleges that she and Defendant Michael Ambrose had created a partnership to develop and market a web-based electronic medical records program. See Am. Compl. ¶¶ 14, 20 (Dkt. 5). In claiming that Ambrose excluded her from partnership benefits, opportunities, and property, Plaintiff asserts several causes of action: (i) usurpation of a partnership business opportunity; (ii) statutory and common-law conversion; (iii) demand for the winding up of the partnership; (iv) declaratory judgment; (v) breach of a fiduciary duty; and (vi) demand for a formal account. Id . ¶¶ 42-73. Plaintiff now seeks to amend her Complaint, to add a new claim based on quantum meruit. Pl. Br. at 11. The motion was filed on January 6, 2015 - just nine days before the close of discovery, 24 days before the dispositive motion deadline, and over a year after the initial complaint was filed in December 2013.
III. STANDARD OF DECISION
Unless a party is entitled to amend as of right, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). "In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962).
A. Bad Faith or Dilatory Motive
Plaintiff argues that there is no evidence of either bad faith or dilatory motive, noting that she has not previously sought leave to amend her complaint. Pl. Br. at 10. Plaintiff also notes that she is not requesting any adjournment of the trial, currently set for August 3, 2015. Pl. Reply at 1 (Dkt. 55). Defendants, on the other hand, argue that Plaintiff's motion was brought in bad faith, because "[t]he only plausible rationale for Plaintiff's delayed motion to amend... is to further delay litigation[, ] to avoid dispositive motion practice[, ] and to force Defendants to incur additional expense and fees[.]" Defs. Resp. at 10-11.
The Court concludes that there is no firm evidence that Plaintiff acted in bad faith or with a dilatory motive in filing her motion to amend her complaint at this stage of the litigation. While the motion to amend comes late in the schedule, it would be mere conjecture to infer bad faith from the mere passage of time. See, e.g., Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 386 (D. Conn. 2008) (seven-month delay did not permit an inference of bad faith or dilatory motive).
A motion for leave to amend may be denied if the amendment would be futile. The Sixth Circuit has explained the standard for determining futility:
A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (internal citation and quotation marks omitted). To survive a motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level and to state a claim to relief that is plausible on its face." Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.E.2d 929 (2007) (internal quotation marks omitted). "A plaintiff must ...