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BARON v. NATIONAL-STANDARD CO.

April 28, 1994

THARON L. BARON, KENNETH O. BINKLEY, RICHARD L. BOWMAN, JAY L. BRADLEY, DAVID E. BULLER, DONALD L. DIXON, LEONARD H. DOHNER, MELVIN D. DUPLER, RONALD E. DWYER, GASTON H. EDWARDS, ROBERT L. EICHLER, GILBERT T. ENGLE, A. EUGENE ENTERLINE, GARY E. FANUS, JACOB D. FLOYD, GALEN W. FRY, DONALD A. GARVIN, DONALD E. GIBBLE, THEODORE E. GROFF, RALPH R. HEFFLEY, HARRY B. HESS, RICHARD C. NULL, WARREN L. HILT, RICHARD P. HECKER, WAYNE N. KAUFFMAN, HARRY W. KLINE, JR., WESLEY D. KULP, JAMES E. LANDIS, WILLIAM K. LEHMAN, RONALD E. LITTLE, RONALD M. LONG, DONALD L. McGARVEY, LARRY C. MAYER, JOHN P. QUINO, SR., PAUL M. SCHWANGER, FRANKLIN B. SHAAK, DAVID SHELLY, JR., JAMES A. SIMALA, PAUL E. THOMAS, STEPHEN C. WAGNER, JAMES I. WEIT, ROBERT C. WEIT, JR., JAMES L. WICKENHEISER, Plaintiffs,
v.
NATIONAL-STANDARD COMPANY, Defendant.



The opinion of the court was delivered by: FRANKLIN S. VAN ANTWERPEN

 VAN ANTWERPEN, J.

 Plaintiffs commenced this civil action against defendant in the Court of Common Pleas of Lancaster County, Pennsylvania by filing a Complaint on September 10, 1993 alleging that defendant had violated the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 P.S. § 260.1 et. seq., by failing to remit severance payments to the plaintiffs in connection with defendant's sale of its Mount Joy manufacturing plant. Plaintiffs seek severance payments, as well as liquidated damages, fringe benefits or wage supplements due and owing under the Pennsylvania statute. On September 14, 1993, defendant removed the case to this court, pursuant to 28 U.S.C. § 1441(b), claiming both federal question and diversity jurisdiction. 28 U.S.C. §§ 1331 and 1332.

 I. AMENDMENT OF PLEADINGS

 Pursuant to this court's Order of November 5, 1993, the parties were permitted to conduct discovery until February 4, 1994. On February 22, 1994, plaintiffs filed a Motion to Amend their Complaint, alleging that discovery had revealed an alternative theory of recovery under Section 301 of the LMRA. 29 U.S.C. § 185. Fed. R. Civ. P. 15(a) provides that "a party may amend [its] pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." *fn1" The Supreme Court has identified several factors to be considered when applying Rule 15(a):

 
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. 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." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely an abuse of that discretion and inconsistent with the spirit of the Federal Rules.

 Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). The Third Circuit has interpreted these factors to mean that "prejudice to the non-moving party is the touchstone for the denial of an amendment." Cornell & Co. v. Occupational Safety & Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978). In the absence of substantial or undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of amendment. Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1714, 72 L. Ed. 2d 136 (1982).

 Defendant alleges that all of the Heyl factors are present in this case. First, defendant contends that there has been an undue delay in the filing of this motion. In balancing the equities in this matter, we must initially note that delay alone is an insufficient reason to deny a motion to amend. The critical factors to be examined are notice and substantial prejudice. Cornell & Co. v. Occupational Safety & Health Review Comm'n, 573 F.2d at 823.

 However, when taking the measure of prejudice in a case, it is necessary to weigh the plaintiffs' reason for any delay in raising the issue proposed for amendment against the prejudice likely to be suffered by the defendant. Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). "The longer the period of unexplained delay the less will be required of the nonmoving party to show prejudice." Advocat v. Nexus Industries, Inc., 497 F. Supp. 328, 331 (D.C. Del. 1980).

 However, the most significant matter to be considered here is the potential prejudice to the defendant should the motion to amend be granted. In this case, defendant suffers little prejudice by the proposed amendment, which introduces a new theory for relief under the LMRA, since National-Standard itself first considered this theory in alleging that the plaintiffs' state law claims were preempted by the LMRA. In fact, defendant removed this case from state court in part on those same grounds. *fn2" See Notice of Removal, p. 3. While plaintiffs unquestionably wanted to be in state court rather than federal court, the mere fact that plaintiffs now attempt to clarify their claims by adding a federal cause of action is not cause to find that they acted improperly. See, e.g., Minor v. Northville Pub. Sch., 605 F. Supp. 1185, 1201 (E.D. Mich. 1985) ("Filing a motion for leave to amend after prompting by opposing counsel's motion for dismissal is not bad faith"). We do not believe that a plaintiff who appears to be pursuing a particular cause of action is precluded from modifying her pleadings so as to express a different cause of action, if the new theory fits with the facts of her case. *fn3"

 For the foregoing reasons, and to permit plaintiffs an opportunity to litigate their claim for severance pay, we will grant the plaintiffs' motion for leave to file an amended complaint which ...


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