The opinion of the court was delivered by: Pollak, J.
Now before the court is plaintiff Blue Ribbon Commodity Traders, Inc.'s ("Blue Ribbon") Motion to Amend the Complaint (Docket No. 64), which defendant Progreso Cash & Carry ("Progreso") opposes (Docket No. 67). A flurry of additional documents is also before the court: plaintiff's reply (Docket No. 70); defendant's surreply (Docket No. 72); and plaintiff's sursurreply (Docket No. 73).*fn1
This long-running breach of contract action stems from a dispute between Blue Ribbon , a purveyor of meat products, and Progreso, a wholesale grocery business.*fn2 At issue in the present motion to amend is an invoice between the parties, invoice number 40000.
Invoice number 40000 was created in late 2007, some time after the complaint was filed. Though dated January 2, 2007, the invoice claims that defendant Progreso owes plaintiff Blue Ribbon $62,290.80 for chicken thigh meat that was shipped on June 11, 2004. (See Docket No. 64, Exh. B.) Plaintiff claims to have sent this invoice to defendant at the end of 2007. Regardless of whether it was or was not sent, no claim was made in this action with respect to this invoice at the time or at any point in 2007 or 2008.
Plaintiff alleges that invoice number 40000 was first raised in this suit during an April 8, 2009, settlement conference before Magistrate Judge M. Faith Angell, and a copy of the invoice was given to defendant's former counsel soon thereafter.*fn3 An additional copy was sent to defendant's present counsel on October 1, 2009. Notwithstanding the transmission of copies of invoice number 40000, an amendment to the complaint was not sought at any point in 2009.
The legal claim resulting from invoice number 40000 was first brought to this court's attention in late October 2009 in defendant Progreso's first motion for summary judgment and plaintiff's opposition thereto. (See Docket Nos. 54, 57.) In resolving the motion for summary judgment in August 2010, the court noted that invoice number 40000 was a new claim not covered by the complaint filed in October 2007. (See Docket No. 60 at 2 n.2.) Moreover, there was no motion to amend the complaint to include invoice number 40000 prior to the summary judgment stage. Accordingly, Blue Ribbon was barred from raising the claims related to invoice number 40000 at that time.
Following the disposition of the first motion for summary judgment, on September 17, 2010, the parties filed a joint pretrial memorandum for the pretrial conference held on September 23, 2010. Two days before the conference, on September 21, 2010, plaintiff filed this motion to amend the complaint to include invoice number 40000, nearly three years after the complaint was filed and only after discovery, disposition of a motion for summary judgment, the scheduling of a pretrial conference, and the submission of a joint pretrial memorandum. After extensive briefing, the matter is ripe for disposition.
A motion to amend the complaint is made pursuant to Federal Rule of Civil Procedure 15. Because the present motion is opposed and does not fall within the provisions for amendment as of right, leave of court is required. Fed. R. Civ. P. 15(a)(2). This court "freely give[s] leave when justice so requires." Id.
In determining whether leave should be given, the court examines whether there was "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, [and] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court." Id.; see also Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (holding that while "the liberal pleading philosophy of the federal rules does limit a district court's discretion to deny leave to amend," the "[d]istrict courts are the experts in the field of applied trial procedure" (internal quotation marks omitted)).
The Third Circuit "has interpreted [the Foman] factors to emphasize that prejudice to the non-moving party is the touchstone for the denial of the amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (internal quotation marks omitted). The non-moving party must do more than merely claim prejudice; it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely. Id. "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." ...