The opinion of the court was delivered by: Golden, J.
MEMORANDUM OPINION & ORDER
Plaintiffs, three students at Allentown's Central Elementary School ("CES"), brought this action against Allentown School District ("ASD" or "School District") and Lehigh Valley Hospital ("LVH") asserting various federal and state law claims, including one count alleging violations of Plaintiffs' constitutional right to bodily integrity pursuant to 42 U.S.C. § 1983. The Amended Complaint also names seventeen ASD employees ("ASD Individual Defendants") and two employees of LVH, nurse Margaret Perry ("Perry") and social worker Kathleen E. Coughlin ("Coughlin"), who provided healthcare services to CES students and allegedly oversaw healthcare for ASD (collectively, "LVH Individual Defendants").*fn1 The claims in the Amended Complaint arise out of a series of alleged sexual assaults perpetrated by Defendant F.H.-a twelve-year old boy who transferred to CES at the beginning of the 2003 school year-against four first-grade boys in bathroom stalls at CES. (Am. Compl. ¶¶ 39, 40, 49, 51, 54).*fn2 The assaults took place between December 2003 and March 2004. (Id. at ¶ 40). Three of the alleged victims, by and through their parents and guardians, filed the Amended Complaint in this action.
Before the Court is Plaintiffs' Motion for Leave to File a Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a). (Doc. No. 93). In lieu of a reply brief in response to Defendants' briefs opposing Plaintiffs' Motion, Plaintiffs filed a draft Second Amended Complaint containing the proposed counts and supporting factual allegations. (Doc. No. 104). Plaintiffs have requested the inclusion of the following additional counts: (a) one sexual discrimination and harassment count against ASD, the ASD Individual Defendants, and LVH pursuant to Title IX, 20 U.S.C. § 1681 et seq . (Proposed Second Am. Compl., Count II); (b) separate professional negligence counts against Defendants Perry, Coughlin, and LVH (Proposed Second Am. Compl., Counts III, IV, and V);*fn3 (c) one general negligence count against F.H. (Proposed Second Am. Compl., Count VI);*fn4 and (d) one general negligence count against F.H.'s father and F.H.'s mother (Proposed Second Am. Compl., Count VII).*fn5 Plaintiffs also request permission to add previously-identified minor, "Nicholas Coe," as an additional party plaintiff with respect to all causes of action. (Pls.' Mot. at 2).*fn6
The Court has carefully considered the written submissions of the parties, as well as the oral arguments presented to the Court on January 30, 2009 and accompanying supplemental briefs. (Doc. No. 114). For the reasons stated below, Plaintiffs' Motion is granted in part and denied in part.
Federal Rule of Civil Procedure 15 states that leave to file an amended complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). "A party generally should be permitted to amend a complaint where if it did so it could state a claim." Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 309 (3d Cir. 2003). "Amendment, however, is not automatic." Butz v. Lawns Unlimited Ltd., 568 F. Supp. 2d 468, 479 (D. Del. 2008). A district court may exercise its discretion to deny the request "if it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith, or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party." Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2004); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). In applying that standard, the Court is mindful of the Third Circuit's teaching that our exercise of discretion should comport with the liberal approach to amendment embodied in the judicial interpretation of Rule 15. See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 887 (3d Cir. 1992).
I. Undue Delay, Bad Faith, Dilatory Motives, and Prejudice
Defendants claim that leave to file any amendments to the Amended Complaint should be denied because Plaintiffs have demonstrated undue delay, bad faith, or dilatory motives, and because any amendment would also result in prejudice. Defendants specifically contend that Plaintiffs indicated an intent to file a Second Amended Complaint as early as October 25, 2007, yet failed to seek leave to amend until April 17, 2008, and only provided Defendants with a Proposed Second Amended Complaint on June 6, 2008. (LVH Defs.' Opp'n Br. at 3; ASD Defs.' Opp'n Br. at 4). "The passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become 'undue,' placing an unwarranted burden on the court, or will become 'prejudicial,' placing an unfair burden on the opposing party." Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984), cert. denied, 469 U.S. 1122 (1985).
While there certainly was some delay in Plaintiffs' request to amend the Amended Complaint, this delay was not undue given that discovery has not yet been conducted on the counts in the Amended Complaint, initial disclosures have not yet been exchanged, a scheduling order has not yet been issued by the Court, and a Rule 16 conference has not yet been held. (Pls.' Br. at 6). Counsel for all parties also acknowledged at oral argument that a Rule 26(f) conference has not yet been conducted. See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001) ("[D]elay alone is an insufficient ground to deny leave to amend."); Adams, 739 F.2d at 869 ("Since amendment of a complaint is not unusual at the summary judgment stage of the case, we would not characterize plaintiffs' failure to amend their complaint earlier as 'undue delay.'") (internal citation omitted); Achey v. Crete Carrier Corp., No. 07-3592, 2009 WL 101843, at *2 (E.D. Pa. Jan. 14, 2009) (delay was not undue even after defendants had filed motion for partial summary judgment); Bernheim v. Estate of Bedrick, No. 07-2195, 2007 WL 2900377, at *3 n.4 (D.N.J. Oct. 1, 2007) (no undue delay where the "plaintiff filed his motion the same day as the Rule 16 conference and before discovery commenced."). Because Defendants have only shown the mere passage of time, without establishing that this delay would place an unwarranted burden on the Court or the parties, this delay is insufficient to preclude Plaintiffs from adding claims to the Amended Complaint given the liberal approach to amendment embodied in Rule 15.*fn7
Additionally, no real prejudice would be created if the Court were to grant Plaintiffs' Motion for Leave to File a Second Amended Complaint. See Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) ("[P]rejudice to the non-moving party is the touchstone for the denial of an amendment."). As stated above, this case is still in its early stages, as discovery has not yet been conducted. (Pls.' Br. at 6). Defendants have also had the opportunity to brief and fully address the specific allegations made in Plaintiffs' Proposed Second Amended Complaint. See Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 106 F. Supp. 2d 737, 745 (D.N.J. 2000) ("The test for prejudice is whether the non-moving party will be denied 'a fair opportunity to defend and offer additional evidence' to address the amendment.") (quoting Evans Prods. Co. v. West Am. Ins. Co., 736 F.2d 920, 924 (3d Cir. 1984)). Finally, while Plaintiffs' Proposed Second Amended Complaint contains new counts, the underlying facts supporting these new counts are "based on facts similar to those comprising the original [amended] complaint." See Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000); see also Achey, 2009 WL 101843, at *3. Given that this litigation is still in its infancy, Defendants had a fair opportunity to address Plaintiffs' new claims, and the new counts are based on facts already known to Defendants, there is little, if any, prejudice in permitting Plaintiffs to amend their Amended Complaint.
Accordingly, Defendants have failed to show undue delay, bad faith, dilatory motives, or prejudice that would compel the Court to deny Plaintiffs' request to amend the Amended Complaint. As a result, amendment will be permitted unless Defendants can show that amendment would be futile.
"Futility" means that "the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Alpharma Inc. Sec. Litig., 372 F.3d 137, 153 (3d Cir. 2004) (internal quotations omitted). Thus, in assessing "futility," the district court applies the same standard of legal sufficiency that applies under Federal Rule of Civil Procedure 12(b)(6). Id. at 153-54. Rule 12(b)(6) allows courts to screen out cases where "a complaint states a claim based upon a wrong for which there is clearly no remedy, or a claim which the plaintiff is without right or power to assert and for which no relief could possibly be granted." Port Auth. of New York and New Jersey v. Arcadian Corp., 189 F.3d 305, 312 (3d Cir. 1999). The Third Circuit Court of Appeals instructs that "the complaint will withstand a Fed. R. Civ. P. 12(b)(6) attack if the material facts as alleged, in addition to inferences drawn from those allegations, provide a basis for recovery." See Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 124-25 (3d Cir. 1998). In deciding a motion to dismiss, a court is required to accept all of the plaintiff's factual ...