The opinion of the court was delivered by: Chief Judge Kane
Before the Court are motions for reconsideration*fn1 and for leave to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure by Plaintiffs' Darrel Steffy and Susanne Steffy. (Doc. No. 199.) The motions are fully briefed and are ripe for disposition. For the reasons that follow, the motions will be denied.
A. Factual Background*fn2
In September 2005, the Plaintiffs Darrel Steffy and his wife, Susanne Steffy, began construction of a building on their property for various uses, including: storage, fitness, entertaining friends, display space for hunting trophies, and office space. (Doc. No. 67 ¶ 3.) While browsing around Home Depot, Mr. Steffy spotted plywood and decided to use it to panel the interior walls of the building (other than the garage) because it would be cheaper and more sturdy than drywall. (Doc. No. 67 ¶ 11) On or about November 10, 2005, he purchased 300 four by eight foot sheets of 3/4 inch thick, 13 ply, cabinet grade plywood from Home Depot at $23.00 per sheet. (Id..) He purchased an additional 100 sheets of similar plywood on January 3, 2006. (Id. ¶ 14.) This plywood was supplied to Home Depot from Defendant Patriot Timber Products. (Doc. No. 63 ¶ 17.) After the project was completed, starting around February 2006, people inside the building began to notice adverse effects from being inside the structure, including: watering and burning eyes, headaches, and burning in the throat. (Doc. No. 63 ¶ 21.)
When a handheld device revealed formaldehyde in the air, Mr. Steffy contacted Edward Montz Jr.'s ("Montz") of Indoor Air Solutions ("IAS") to test the building's air on July 20, 2006. (Doc. No. 67 ¶¶ 19-20.) Following the results from these tests on the plywood paneling, Montz concluded that "[t]he paneling obtained by Mr. Steffy and installed in the above-referenced building is a very potent source of formaldehyde in the building (estimated to be over 20 times the OSHA maximum Permissible Exposure Limit for industrial workplace environments at the time of installation)." (Doc. No. 63-7, Ex. G at 6 at 10.) He further concludes that of the various options to fix the problem, the best would be "a complete removal of all of the paneling and any reservoirs in the building which currently exist." (Id. at 11.) Defense experts disagree with Montz's conclusion on causation and instead conclude that decisions made in construction of the building, other formaldehyde producing materials, and an inadequate ventilation system have caused the formaldehyde problem. (Doc. No. 64 ¶¶ 60-64.)
The Plaintiffs have stated causes of action for strict liability and negligence against both defendants. (Doc. No. 1 ¶¶ 50-59.) In a memorandum and order issued on March 31, 2009, the Court dismissed the Plaintiffs' strict liability and negligence claims against Defendant Home Depot based on application of the economic loss doctrine. (Doc. No. 185.) Patriot Timber, though charged under the same theories, did not raise the economic loss bar. (See Doc. No. 186 ¶ 7.) Because of the Court's favorable ruling on their co-defendant's motion, Patriot Timber brought a second motion for summary judgment to raise the issue on their own behalf. (Doc. No. 186.) The Court granted this motion, dismissing all remaining claims against Patriot Timber. (Doc. No. 198.)
Plaintiffs request that the Court grant them "leave to amend their complaint to include claims against Patriot for breach of the implied warranty of merchantability and breach of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, both of which have already been pled against The Home Depot and survived summary judgment." (Doc. No. 200 at 1.)
The Federal Rules of Civil Procedure embody the federal system's liberal approach to pleading. See Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d Cir. 2006) (citing Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir. 2004)). Rule 15(a)(2) directs that "[t]he court should freely give leave [to amend] when justice so requires." The court may deny leave to amend if the plaintiff's delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the opposing party. Cureton v. National Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A court may also deny leave to amend if the amendment would be futile. In re Merck & Co., Inc., Sec. Derivative & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007).
The Third Circuit has consistently held that prejudice to the non-moving party is the touchstone for the denial of a motion to amend. Maersk, 434 F.3d at 204 (citing Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)). The question of prejudice requires that the Court focus on hardship to the defendants if the amendment were permitted, specifically, whether amendment "would result in additional discovery, cost, and preparation to defend against new facts or new theories." Cureton, 242 F.3d at 273.
Patriot argues that it would suffer "severe prejudice" if forced to mount a last-minute defense against the new implied warranty claims. (Doc. No. 203 at 12.) In support of this contention, Patriot points out that the case was filed by Plaintiffs over two years ago and has already proceeded through extensive discovery and pre-trial motions. (Doc. No. 203 at 13.) Patriot also claims that it would ...