United States District Court, D. Connecticut
L.S., a minor, by P.S., his parent and next friend, on behalf of himself and all others similarly situated, Plaintiff,
WEBLOYALTY.COM, INC., GAMESTOP CORPORATION, and VISA INC., Defendants.
ORDER ON DEFENDANTS' MOTION FOR LEAVE TO
CHARLES S. HAIGHT, JR. Senior United States District Judge.
the Court is Defendants' Motion to Amend/Correct [Doc.
129], which seeks to add two additional affirmative defenses
- namely, release and statute of limitations - to
Defendants' Answer [Doc. 125] to Plaintiff's Amended
Complaint [Doc. 91]. Because more than 21 days elapsed
between the filing of the Answer and Defendants' instant
effort to amend, the desired amendment requires either
Plaintiff's consent or leave of the Court. See
Fed. R. Civ. P. 15(a). Plaintiff has not consented, and has
filed a Memorandum in Opposition [Doc. 131], to which
Defendants have filed a Reply [Doc. 132]. Therefore, the
proposed amendments require the leave of the Court. This
Order evaluates the proposed amendments and resolves the
.STANDARD FOR GRANT OF LEAVE TO AMEND
leading case on the propriety of amendment of pleadings by
leave of court is Foman v. Davis, 371 U.S. 178
(1962). The Supreme Court stated generally that "the
purpose of pleading is to facilitate a proper decision on the
merits." 371 U.S. at 182 (citing and quoting Conley
v. Gibson, 355 U.S. 41, 48 (1957)). Foman then
voices this oft-quoted guidance:
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 [to amend] should, as the rules
require, be "freely given."
371 U.S. at 182.
by Foman, federal trial courts are lenient in
allowing amendments to pleadings, but they are not supine. If
the party opposing amendment demonstrates the presence of one
or more of the negative factors listed in Foman, the
amendment will not be allowed, for in that circumstance the
cause of justice would not be served. In our case, Plaintiff
argues that Defendants' proposed amendments are made in
bad faith, unduly prejudicial to Plaintiff, and futile.
See Pl. Br. The Court will consider each of these
contentions in turn.
also urges the Court to deny leave to amend for
Defendants' failure to "show good cause." Pl.
Br. 11. Plaintiff argues "[t]he time to amend their
answer as of right expired. . . . Defendants provide no
explanation as to why they could not have timely asserted
their so-called 'release' and 'statute of
limitations' defenses or any reason why they omitted
those defenses from their answer and so have certainly made
no showing of good cause." Id. This misstates
the standard for amendment of the pleadings. Federal Rule of
Civil Procedure 15(a)(2) instructs judges to "freely
give leave" to amend, "where justice so
requires." It does not require the amending party to
demonstrate good cause. While the window for amending a
pleading as of right may close after 21 days, that does not,
as Plaintiff suggests, make any amendment sought after 21
As to Bad Faith
their Amended Rule 26(f) Report [Doc. 122], Plaintiff and
Defendants differed on the time for commencement of discovery
in this matter, among other scheduling disputes. Defendants
justified their proposed timetable, in part, by their
professed intention to bring early dispositive motions in
This matter is ripe for early disposition by way of a motion
for judgment on the pleadings regarding Plaintiff's
remaining claim under [the Connecticut Unfair Trade Practices
Act] and a motion for partial summary judgment regarding
Plaintiff's remaining claim under the [Electronic Funds
Transfer Act]. Defendants will file such motions within 30
days after the Answer, i.e., by May 15, 2017.
Accordingly, Defendants propose that fact discovery, if
necessary, be commenced only after the Court enters a
decision on these motions.
26(f) Report, at 16. As of this writing, no motion for
judgment on the pleadings or summary judgment has been filed.
Plaintiff now maintains that the instant Motion moots
Defendants' proposed motion for judgment on the pleadings
as to the Connecticut Unfair Trade Practices
("CUTPA") claim, and demonstrates bad faith on the
part of Defendants. See Pl. Br. 11-12. Plaintiff
argues that Defendants' proposed motion for judgment on
the pleadings "represent[ed] that the pleadings were
closed, " casting doubt on the good faith of Defendants
in bringing the instant Motion to re-open the pleadings.
Id. at 12.
Court is not convinced by this line of reasoning, nor by the
cases Plaintiff cites to support it. The bare facts do not
suggest bad faith by any objective standard. Defendants, by
the Amended Rule 26(f) Report, notified Plaintiff and the
Court of their intention to file a dispositive motion at a
future point in this litigation. After filing the Answer
[Doc. 125] and before filing that anticipated dispositive
motion, Defendants realized they had omitted affirmative
defenses from their pleading, and sought to remedy that