D.C. Del. 1946, 5 F.R.D. 115, at page 116: 'Opportunity should be given to a plaintiff to present his alleged grievance; yet equal attention should be given to the proposition that there must be an end finally to a particular litigation.'
Failure on the part of the party seeking the amendment to show that his delay in tendering the amendment was due to excusable oversight will support a refusal to allow the amendment. Frank Adam Electric Co. v. Westinghouse Elec. Mfg. Co., 8 Cir., 1945, 146 F.2d 165.
Plaintiff had 18 months from the date of the filing of the motion for summary judgment until the date of the hearing on that motion to show the Court that there were material issues of fact involved, by amendment of his complaint or by filing of counter-affidavits setting forth additional facts. This was not done, although the facts now asserted must have been known to the plaintiff all that time. If a defendant moves for summary judgment asserting that the applicable period of limitations has elapsed, his motion should not be denied for the reason that there might possibly be facts which would toll the Statute of Limitations. Reynolds v. Needle, 1942, 77 U.S.App.D.C. 53, 132 F.2d 161.
Plaintiff argues further that the Court should apply Rule 60(b) of the Federal Rules of Civil Procedure in passing on the motion for leave to amend. If the Court were to grant the amendment, such action would necessarily require this Court to vacate the judgment entered in this case and Rule 60(b) would furnish the authority to do so. The primary question is whether the amendment should be allowed, and as to this Rule 15 governs. We have already discussed the applicability of Rule 15 to this case.
Finally, it is urged by plaintiff that Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F.2d 242, supports his position that the judgment should be set aside and the amendment allowed. In that case, a default judgment was taken against the defendant who had never actually been served with the complaint, and who had no notice of the action prior to the entry of default judgment. Alleging that it had notice of the filing of the complaint and subsequent entry of judgment about one month prior thereto, defendant filed a motion under Rule 60(b) to set aside the default judgment. The motion was denied by the lower court, assigning as reasons therefor the gross neglect of defendant and the lack of a meritorious defense. The Court of Appeals held that this was an abuse of discretion and reversed the order of the lower court, stating, 189 F.2d at page 246: 'We do not think that defendant's omission constitutes gross neglect, for it could not reasonably have anticipated that it might be sued in Pennsylvania on a cause of action arising outside Pennsylvania.'
It is apparent that these facts are entirely different from those in the case now before us. Plaintiff was in no way taken off guard by the defense of the Statute of Limitations. As already pointed out he knew the defense asserted by the defendant for 18 months before the argument and did nothing to meet it. He has given no valid reason for his neglect and delay.
Plaintiff's motion will be refused.
© 1992-2004 VersusLaw Inc.