Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eisenberg v. Bank of America

March 10, 2010

SUSAN EISENBERG, PLAINTIFF
v.
BANK OF AMERICA, SUCCESSOR BY MERGER TO FLEET BANK AND PNC BANK, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court for disposition is Plaintiff Susan Eisenberg's motion for leave to file an amended complaint. The matter has been fully briefed and is ripe for disposition.

Background

In January 2005, American General Assurance Company issued three checks payable to plaintiff. (Doc. 5, Amended Compl. at ¶ 4). They were sent to plaintiff in care of her attorneys, the law firm of Quadrino & Schwartz ("Q & S"). Two of the checks were for $6,000.00 and one was for $366,000.00. The checks represented proceeds of a disability lawsuit that the plaintiff had settled. (Id.)

Q & S endorsed the checks and deposited them into its bank account without plaintiff's approval or knowledge. (Id.) Defendant Bank of America ("BOA") is the depository bank for the checks in question. ( Id. at ¶ 7). Defendant PNC Bank ("PNC") is the drawee bank for the checks. ( Id. at ¶ 8). Plaintiff asserts that because the checks were endorsed by Q & S without her authorization, the defendants converted the checks pursuant to 13 PENN. CONS. STAT. ANN. § 3420. (Id. at ¶ 7). Thus, plaintiff instituted the instant action seeking $378,000.00. Near the end of the discovery period, the plaintiff filed a motion to file a second amended complaint, bringing the case to its present posture.

Jurisdiction

This Court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The plaintiff is a citizen of the state of Arizona. Defendant BOA is a North Carolina corporation with a principal place of business in Charlotte, North Carolina. Defendant PNC is a Delaware corporation with a principal place of business in Pittsburgh, Pennsylvania.

Standard of Review

Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleading after a responsive pleading is served only by leave of the court. FED.R.CIV.P. 15(a). District courts must grant leave liberally "when justice so requires." FED.R .CIV.P. 15(a); Gay v. Petsock, 917 F.2d 768, 772 (3d Cir. 1990).

The Supreme Court discussed the liberal standard to amend a complaint under Rule 15(a), when it found in Forman v. Davis that "[i]n 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 the amendment . . . , the leave sought should, as the rules require, be freely given." Provenzano v. Integrated Genetics, et al., 22 F. Supp.2d 406, 410-11 (3d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

In applying Rule 15(a), the Third Circuit Court of Appeals regards the possibility of prejudice to the non-moving party as the "touchstone for the denial of the amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir.1989) (quoting Cornell & Co., Inc. v. Occupational Safety and Health Rev. Comm'n, 573 F.2d 820, 823 (3d Cir.1978)). Absent undue prejudice, "denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Heyl & Patterson International, Inc. v. F.D. Rich Hous. of the Virgin Islands, 663 F.2d 419, 425 (3d Cir.1981) (citing Cornell, 573 F.2d at 823).

Discussion

Plaintiff seeks permission to file a second amended complaint to add causes of action for: 1) negligence; 2) conversion against Defendant BOA under either New York or Connecticut law; 3) a claim under the Connecticut Unfair Trade Practices Act (hereinafter "CUTPA"), CONN. GEN. STAT. § 42-110b(a); and 4) punitive damages, costs and reasonable attorney's fees. (Doc. 46, Motion for Leave to File Amended Complaint, at ¶ 3). Defendants oppose the motion. They assert that plaintiff waited an unreasonable amount of time before seeking to add these claims and therefore, defendants are prejudiced. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.