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Brand Marketing Group, LLC v. Intertek Testing Services N.A., Inc.

United States District Court, Third Circuit

September 3, 2013



ARTHUR J. SCHWAB, District Judge.

I. Introduction

In this protracted litigation, in which the parties have been unwilling or unable to compromise on the most basic of issues, have been less than helpful to the Court in their pretrial filings, and have continued their combative tenor up until the present day, the Court now finds itself on the day of trial, with two new Motions, filed on the literal eve of trial seeking to amend their respective pleadings in ways that are profound, and if granted, would alter the entire scope of this litigation. Simply put, these motions are untimely, and to grant them at this stage of the trial, would be extremely prejudicial.

To recount briefly, at 12:08 p.m. on Friday, August 30, 2013, less than five business hours before trial was scheduled to commence in the above-captioned matter, Defendant Intertek Testing Services, N.A., Inc. ("Intertek") filed a Motion for Leave to file an Amended Answer and Counterclaim, seeking to include Interek's "setoff" which included an acquisition of the rights to a Judgment that it belatedly acquired from non-party Ace Hardware, who held a Default Judgment against Plaintiff in the amount of $611, 060.45. Doc. No. 180. Said acquisition was made pursuant to a Settlement Agreement which was referenced, but not included, within the Motion. Within minutes and prior to the Court seeking a response thereto, Plaintiff Brand Marketing Group, LLC ("Brand") filed a Response in opposition (doc. no. 181).

Based upon a reading and review of the Motion and Response, the Court ordered Intertek to file the entire unredacted unsealed settlement agreement that Intertek had entered into with Ace Hardware Corp. ("the Agreement") that was the subject of the underlying Motion by 5:00 p.m. on August 30, 2013. Text Order of 8/30/13. Intertek instead filed a motion to file said document under seal, which the Court denied by Text Order at 4:10 p.m. on August 30, 2013. At 4:57 p.m., Intertek filed the Agreement along with a Reply (without seeking leave of Court to file a Reply as is required by the Practices and Procedures of this Court). Doc. Nos. 183 & 183-1.[1]

Then, on September 2, 2013, Labor Day at 11:07 am, Brand filed a Motion for Leave to file a Third Amended Complaint, seeking now (or perhaps alternatively) to include allegations related to this August 29, 2013 assignment of Judgment. Doc. No. 184. At 1:10 p.m. on Labor Day, the Court entered a text order requiring Intertek filed a Response thereto by 9:00 p.m. on Labor Day. At 8:07 p.m., Defendant filed its Response thereto. Doc. No. 186.

At this extremely late juncture, for the reasons set forth hereinbelow, this Court will DENY both Motions for Leave to File Amended Pleadings.

II. Standard of Review

Fed. R. Civ. Pr. 15(a)(2) provides that a party may amend its pleadings with the written consent of the opposition, or leave of Court. While motions for leave to amend are to be liberally granted, "grounds that could justify a denial of leave [include] undue delay, bad faith, dilatory motive, [and] prejudice." General Refractories, Co. v. Firemen's Fund Insurance Co., 337 F.3d 297, 309 (3d Cir. 2003)(quoting Shane v. Fauver, 213 F.3d 113, 115-16 (3d Cir. 2000)). However, "prejudice to the nonmoving party is the touchstone for the denial of the amendment." CMR D.N. Corp. v. City of Phila., 703 F.3d 612, 629 (3d Cir. 2013) (quoting Dole v. Arco Chem. Co., 921 F.2d 484, 488 (3d Cir. 1990)).

III. Procedural History

At the Initial Case Management Conference on December 3, 2012, the Court issued a Case Management Order which set a deadline of January 2, 2013, for motions to amend the pleadings. Doc. No. 21, ΒΆ 2. The Court also set trial for September 3, 2013. Doc. No. 22. Thereafter, on February 1, 2013, Brand sought leave to file a Second Amended Complaint, which this Court granted. See doc. nos. 40, 41. On February 5, 2013, Brand filed its Second Amended Complaint (doc. no. 42) and on February 19, 2013, Intertek filed its Amended Answer and Counterclaim (doc. no. 44).

Also, at the Initial Case Management Conference, the Court appointed the Hon. Eugene Scanlon to serve as mediator in this case. Doc. No. 24. After the first mediation, the Court ordered a second mediation before Judge Scanlon because Intertek had failed to meaningfully participate in the mediation as required by the Local Rules. Text Order of 1/29/13. The Second Mediation before Judge Scanlon, however, was again unsuccessful. Doc. No. 95.

Following denial of summary judgment, after the parties had filed wholly inadequate pretrial documents, which the Court was required to strike, resulting in approximately four (4) versions of the Final Jury Instructions, and three (3) versions of the Verdict Slip, the Court scheduled a two-day conference to discuss preparations for trial. Text Order of 7/19/13. In addition to working on their pretrial filings in the jury room of the Court, the parties engaged in informal settlement discussions with the Court's law clerk serving as a facilitator.

At the conclusion of the conference, on July 31, 2013, after attempting to work through numerous issues surrounding the pretrial filings, the Court appointed Michael Betts, Esq. to serve as mediator for a third mediation. Doc. No. 157. The Court further compelled the attendance of Ace at the third mediation, since the Court was aware from pretrial filings that the default judgment secured by Ace against Plaintiff was a substantial issue in resolving this case. Doc. No. 154. Unfortunately, the parties did not reach a resolution at the final mediation, before Mr. Betts, however, Mr. Betts had advised that he would continue to informally "caucus" with the parties after said mediation. As a result of this informal caucus, on August 28, ...

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