dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, [and] futility of amendment." Foman, 371 U.S. at 182.
There is no question that plaintiffs substantially delayed the filing of the proposed amendment. The common-law conspiracy claim that plaintiffs seek to assert was available to them at the time they filed their original complaint, because the conspiracy claim admittedly is based upon the same factual allegations that underlie plaintiffs' federal antitrust claims. Nevertheless, plaintiffs did not move for leave to amend their complaint to include the common-law conspiracy claim until December of 1983.
That date is over three years after plaintiffs filed their original complaint, almost two and a half years after they filed their first amended complaint, over a year and a half after Caterpillar moved to dismiss the federal antitrust damage claim, and over four months after the court of appeals handed down the opinion holding that plaintiffs' antitrust damage claim is barred by the doctrine of Illinois Brick.
The mere existence of delay, however, is an insufficient basis for denying a proposed amendment. Cornell & Co. v. Occupational Safety & Health Review Commission, 573 F.2d 820, 823 (3d Cir. 1978). Rather, the moving party's delay must be coupled with an additional consideration, such as prejudice to the opposing party, before a court may deny leave to amend. Boileau, 730 F.2d at 939; Johnson v. Trueblood, 629 F.2d 287, 294 (3d Cir. 1980). Indeed, prejudice to the nonmoving party is considered the "touchstone" for the denial of leave to amend. Cornell, 573 F.2d at 283. As a practical matter, the longer the moving party delays in seeking leave to amend, the more likely it is that the nonmoving party has suffered prejudice in some way. See Advocat v. Nexus Industries, Inc., 497 F. Supp. 328, 331 (D. Del. 1980).
Allowing plaintiffs to amend their complaint to include a claim for common-law conspiracy would result in substantial prejudice to Caterpillar, the nonmoving party. The court of appeals has defined prejudice under Rule 15 to mean "undue difficulty in prosecuting a lawsuit as a result of a change in tactics or theories on the part of the other party." Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 (3d Cir. 1969). Caterpillar already has expended a significant amount of time and resources defending this case as an antitrust matter. Should this case go forward with plaintiffs' proposed amendment, Caterpillar will be forced to expend additional time and resources in litigation.
To begin with, Caterpillar would be required to defend this action under an entirely new and different theory of liability. The court of appeals' opinion on the Illinois Brick issue forecloses plaintiffs from pursuing their claim for damages under the federal antitrust laws. In the foregoing section of this opinion, I have held that plaintiffs' claim for injunctive relief under the federal antitrust laws does not present a justiciable case or controversy. Indeed, plaintiffs' claim for injunctive relief has not been live since plaintiffs sold their Caterpillar electrical generator set business in 1981. If plaintiffs are permitted to amend their complaint, this action, which is almost four years old, will be transformed completely into a state common-law conspiracy action. The amendment would require Caterpillar to engage in additional, and possibly duplicative, discovery, and would necessitate a lengthy and complicated trial. See Kuhn v. Philadelphia Electric Co., 85 F.R.D. 86 (E.D. Pa. 1979) (potential for lengthier and more complicated trial sufficient reason to deny leave to amend). Such a fundamental change in the nature of this litigation, particularly after plaintiffs' original claim for damages has been rejected, frustrates even the liberal rules of notice pleading and is unduly prejudicial to Caterpillar. Zinser v. Continental Grain Co., 660 F.2d 754, 762 (10th Cir. 1981) (plaintiff denied leave to amend complaint to assert claims of fraud, deceit and civil conspiracy after court had ruled that Illinois Brick bars plaintiff's antitrust claims).
In addition, Caterpillar would be exposed to the danger of duplicative recovery and the uncertainties associated with the complex apportionment of damages. The court of appeals already has addressed these concerns in the factual context of this case, and has held that they justify barring a claim for damages under the federal antitrust laws. Merican, 713 F.2d at 968-69. Permitting plaintiffs to reassert a damage claim by employing a theory of civil conspiracy would reopen the door to duplicative recovery and complicated proof of damages and undermine the sound policies articulated and applied by the court of appeals. The prejudice to Caterpillar would be manifest.
The court of appeals held that the district court "erred by refusing to grant Caterpillar's motion to dismiss Appellees' [plaintiffs'] claims for damages." Merican, 713 F.2d at 960. Despite this clear mandate, plaintiffs' seek to avoid dismissal of their claim for damages by asserting, upon the same factual allegations, a cause of action for common-law civil conspiracy, rather than the previously asserted antitrust violations. The court of appeals in Boileau, 730 F.2d at 939 stated that "it is within the discretion of a trial judge to prevent the abusive use of amendment to delay or prolong litigation." Clearly, the only reason for the delay in seeking to amend was because plaintiffs were relying solely on their antitrust claim, and when that claim was finally ordered to be dismissed and certiorari denied by the Supreme Court, plaintiffs made a last-ditch effort to resuscitate their claims by asserting, on the same facts, an entirely new and distinct cause of action.
From the submitted briefs, it is quite apparent that over the intervening years, many documents that would be relevant have become unavailable. Many documents that were at one time maintained by plaintiffs' Saudi facility can no longer be located. Witnesses who were at one time employed by plaintiffs are no longer in their employ, and, thus, it may be impossible for defendants to secure their testimony. See Caterpillar Tractor Co.'s Memorandum in Opposition to Plaintiffs' Motion for Leave to File a Second Amended Complaint at 15-20.
The motion for leave to file a second amended complaint will be denied. Considering all of the circumstances of this case, to grant such a motion at this time, although within the discretion of the district court, might well constitute an abuse of discretion. In any event, in the exercise of discretion, I will deny the motion to amend the complaint.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 596 F. Supp.]
Upon consideration of the judgment and order of the court of appeals dated July 26, 1983, plaintiffs' motion for leave to file a second amended complaint, and defendant's motion for summary judgment on plaintiffs' claims for injunctive relief, for the reasons set forth in the accompanying memorandum, it is
Ordered as follows:
1. Plaintiffs' amended complaint, seeking treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15, is dismissed;
2. Plaintiffs' motion for leave to file a second amended complaint is denied;
3. Defendant's motion for summary judgment on plaintiffs' claims for injunctive relief is granted;
4. Civil Action 80-3723 is terminated.