United States District Court, W.D. Pennsylvania, Pittsburgh.
Bissoon United States District Judge.
Cynthia Reed Eddy Chief United States Magistrate Judge.
before the Court is a motion for leave to file Second Amended
Complaint (ECF No. 159) by Plaintiff, Washington County
Family Entertainment, LLC (“WCFE”). Plaintiff
seeks to add three new defendants and one new cause of action
against existing or additionally named defendants.
to Fed.R.Civ.P. 15(a)(1), a party may amend its pleading
without leave within “(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.” Fed.R.Civ.P. 15(a).
However, in all other situations, “a party may amend
its pleadings only with the opposing party's written
consent or the court's leave.” When justice so
requires, the request for leave to amend should be granted
freely. Id. “This standard encompasses a broad
range of equitable factors, including a party's delay in
seeking leave to amend and any prejudice to the opposing
party. Only when these factors suggest that amendment would
be ‘unjust' should the court deny leave.”
Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir.
2006) (internal citation omitted). Other equitable factors
courts should consider include, bad faith, dilatory motive by
the plaintiff, repeated failure to cure deficiencies, and
futility of an amendment. Foman v. Davis, 371 U.S.
178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A grant or
denial of a motion for leave to file an amended complaint is
“within the discretion of the District Court, ”
however if the court denies such a motion, it must have a
“justifying reason” for doing so. Id.
consideration of all the relevant factors, leave to amend
will be granted. WCFE has represented that it learned of
certain facts during recent depositions of party defendants
Evans and Marcus, and on the basis of those facts, leave to
amend is sought. The Court was notified promptly of the
situation on June 5, 2019 when a Joint Motion to Stay
Discovery was filed. (ECF No. 156). At that point in time
discovery was set to end June 6, 2019. Discovery has since
been stayed pending the disposition of the motion to amend.
motion is unopposed by defendants Gus Heningburg II, James
Evans, Francesco Cina, Bodie Entertainment, Inc., a/k/a The
Bodie Group, LLC and proposed additional defendants Gannon
Wealth Security Partners, LLC (“GWSP”) and FC
Consultants, LLC (“FCC”) (ECF No. 160-2).
Proposed additional Defendants GWSP and FCC will be
represented by existing counsel of record. Id. There
is no indication in the record as to whether the motion is
opposed by proposed defendant Shane A. Halls
(“Halls”). Pro se defendant Romel Marcus
has filed a response in which he objects to the accuracy of
the proposed amendments themselves. (ECF No. 161). Defendants
John Does 1-10 remain so named in the proposed Second Amended
support of its motion, WCFE represents that fact discovery
established that GWSP, FCC, and Halls fraudulently accessed,
obtained, diverted, and converted funds wired by WCFE for the
sham concerts at issue in this case, and were otherwise
intentionally associated with the subject ongoing fraudulent
concert enterprise and participated, directly and indirectly,
in the conduct of the fraudulent racketeering activities at
issue in this action. (ECF No. 159-1 (Proposed Second Am.
Compl). ¶¶ ¶¶ 46-47, 49, 67-68, 81.)
WCFE's proposed Second Amended Complaint restates and
supplements its previously averred claims as against Marcus,
Robinson, GWSP, FCC and Halls (id. ¶¶
91-106, 114-141), and also adds a related claim against these
parties for their violations of 18 U.S.C. § 1962(d)
(RICO conspiracy). (Id. ¶¶ 107-113.)
sole opposition to the motion arises from pro se
defendant Romel Marcus, whose response addresses the merits
of the WCFE's proposed amendments, rather than whether
leave should be granted under the applicable legal standard.
Regardless, at this juncture and given the nature of the
proposed amendments, his objections will be overruled.
Although certain delay has resulted from the filing of the
motion, such delay has not been substantial and we see no
evidence of bad faith or dilatory motive. Rather, the
amendments will serve the interest of justice as they reflect
WCFE's understanding of its case. In addition, no
prejudice will result in the granting of the motion as
discovery will be extended to allow for further development
of the record.
we note that WCFE's reply (ECF No. 162) objects to
Marcus' “untimely” response to the motion,
seeks to strike the response and requests sanctions. Under
the circumstances, to the extent WCFE's reply is a
motion, it will be denied. We realize that unrepresented
parties can prove to be a challenge during litigation.
Nevertheless, Mr. Marcus is entitled to represent himself and
will not be sanctioned for not understanding how to write a
legally-sufficient response. As to timeliness, the court
further notes that Mr. Marcus sent an email to
Plaintiff's counsel on the day his notification to
WCFE's counsel was due (July 22, 2019) as to whether he
consented to the filing of the proposed Second Amended
Complaint. He sought clarification and guidance from opposing
counsel. In order to address WCFE's frustration with Mr.
Marcus' email, the court held a telephone conference on
June 26, 2019 at which time, WCFE now admits, it was put on
notice that Mr. Marcus intended to oppose the amendments,
although the grounds for his opposition remained unclear.
Furthermore, to the extent WCFE takes issue with Mr. Marcus
failing to comply with court orders in a timely fashion, we
note he was required to file a response to WCFE's Motion
for Leave on or before August 12, 2019. His response, however
legally flawed, was filed on August 20, 2019, but mailed on
August 12, 2019, the date it was due. Given his pro
se status and the date he mailed his response,
WCFE's request for sanctions for
“non-compliance” with pretrial orders is
NOW, this 28th day of August, 2019, IT IS HEREBY ORDERED that
the Joint Motion to for Leave to File Second Amended
Complaint (ECF No. 159) is GRANTED and the Plaintiff shall
file the Second Amended Complaint FORTHWITH. It is FURTHER
1). Upon the filing of the Second Amended Complaint, the
Clerk of Court shall issue the Summonses for the newly-added
defendants as follows:
a. Gannon Wealth Security Partners, LLC, 13221st Street,
Brooklyn, New York 11232;
b. FC Consultants, Inc., 23 Rimwood Lane, Colts Neck, New