No. 01 Civ. 5981 (LTS) (THK)



Plaintiffs have filed a motion seeking leave to file a first amended complaint and a motion seeking leave to modify the Court's Pre-Trial Scheduling Order dated November 2, 2001, in order to permit Plaintiff to file a motion to amend the complaint. In the proposed amended complaint. Plaintiffs seek to eliminate any claim for damages against Defendant and do not seek to add new parties, claims, or assert new factual matters. Defendant opposes the Plaintiffs' motions, asserting that such an amendment will cause undue prejudice to Defendants because the amend will result in the elimination of Defendant's insurance coverage paying the cost of litigation.

Rule 15(a) of the Federal Rule of Civil Procedure states that leave to amend "shall be freely given when justice so requires," and the Supreme Court has declared that "this mandate is to be heeded." Foman v. Davis. 371 U.S. 178, 182 (1962).  "Reasons for a proper denial of leave to amend include undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party." State Teachers Retirement Board v. Fluor Corp.. 654 F.2d 843, 856 (2d Cir. 1981).  In deciding whether or not to permit the amendment, "the trial court [is] required to take into account any prejudice that [the non-moving party] would ... suffer as a result." Zenith Radio Corp. v. Hazeltine Research. 401 U.S. 321, 331(1971).

The scheduling order referred to in Plaintiffs' motion set December 31,2001 as the deadline for the filing of any applications to amend pleadings. This date was some seven months after the action was commenced. The scheduling order further set April 5, 2002 as the deadline for completion of fact discovery and provided:

The deadlines set forth in this Pre-Trial Scheduling Order will not be adjourned except in the Court's discretion upon good cause as shown in a written application signed by both counsel and counsel's client and served upon all parties. 'Good cause,' as used in this paragraph, does not include circumstances within the control of counsel or the client.

Pre-Trial Scheduling Order, November 2,2001, 10. Leaving aside Plaintiffs' failure to comply with the requirement of a client signature on their application, there is nothing in their application to show that their failure to apply for leave to amend the complaint until April 1,2002, a mere four days before the fact discovery deadline initially set by the Court, was due to circumstances beyond the control of Plaintiffs or their counsel, nor could they. Litigation clearly had already progressed by that point. It is also clear from Plaintiffs' papers that Defendant's perception that the proposed amendment is designed to affect settlement negotiation leverage is accurate: Plaintiff complains that the only reason that Defendant opposes the application to amend is Defendant's desire to "force [Defendant's] insurer to continue paying defense costs." See Mem. of Law in Supp. of Pi's Mot. for Leave to File Amd. Compl. at 4; see also Rawls Decl. 9, Ex. E (letter from Defendant's insurer representing that it will withdraw from defense upon filing of proposed amended complaint).

Without expressing any opinion as to the obligation, if any, of Defendant's insurer to defend this action, the Court finds that denial of Plaintiffs' motions to amend and to modify the Pre-Trial Scheduling Order is appropriate on grounds of undue delay, lack of prejudice to Plaintiffs, and prejudice to Defendant. Plaintiffs have proffered no good cause for their belated realization that pursuing a damages claim might not be in their best economic interests, and nothing precludes Plaintiffs from making a strategic decision to come short of their burden of proof on any damages claim. Furthermore, now that the case has been pending for a substantial period of time and Plaintiffs' motion for summary judgment is sub judice, grant of an amendment that could eliminate or complicate Defendant's ability to appear in proper defense of this litigation would be prejudicial to Defendant.

Plaintiffs motions for leave to file a first amended complaint and to modify the Pre-Trial Scheduling Order dated November 2, 2001 are, accordingly, denied.


Dated: New York, New York

March 28, 2003




United States District Judge