SARAH S. VANCE, District Judge.
Plaintiff Levi Robertson moves to amend his complaint
This case arises out of allegedly fraudulent withdrawals from Robertson's annuity account with Defendant Sun Life Assurance Company of Canada.
In March 2012, Robertson filed a third amended petition in state court asserting a breach of contract claim against Sun Life.
On March 15, 2017, Sun Life removed this matter to federal court on the basis of federal question jurisdiction under 28 U.S.C. § 1331 and class action jurisdiction under 28 U.S.C. § 1332(d).
Robertson requests leave to file a fifth amended complaint to include additional class action allegations.
The Court will "freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a). The Supreme Court has held that "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend, however, "is by no means automatic." Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir. 1994). A party requesting amendment must "set forth with particularity the grounds for the amendment and the relief sought." United States, ex rel. Doe v. Dow Chemical Co., 343 F.3d 325, 331 (5th Cir. 2003) (internal quotation omitted). The Court considers multiple factors before granting leave to amend, including "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, 371 U.S. at 182.
These factors weigh heavily against granting leave to amend. Robertson seeks to add new class action allegations nearly ten years after filing suit, and six years after first asserting a breach of contract claim in his third amended petition.
Further, Robertson has already amended his complaint four times, and thus had numerous opportunities to assert a breach of contract claim on a class basis. Permitting Robertson to bring new class claims at this stage of the litigation will unduly prejudice Sun Life. See Mayeux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004) (explaining that amendments that "involve new theories of recovery and impose additional discovery requirements" are likely to unduly prejudice defendants (internal quotation omitted)).
The factors discussed above are sufficient to warrant denying leave to amend. But the Court also finds that amendment would be futile because Robertson's proposed amendment fails to support a reasonable inference that he can satisfy the minimum requirements to maintain a class action under Federal Rule of Civil Procedure 23(a). See Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1033 (6th Cir. 1992); see also John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445, 445 n.4 (5th Cir. 2007). Robertson has not provided a proposed amended complaint, but his motion lists several allegations he wishes to make on behalf of the putative class.
Robertson's proposed allegations conclusorily assert that the class members share "common causes of action," but he fails to identify any specific common cause of action. See Fed. R. Civ. P. 23(a)(3) (requiring that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class"); see also E.D. La. Civ. R. 23.1(A) (providing that a class action complaint must include the "alleged questions of law or fact claimed to be common to the class"). Neither the fourth amended petition, nor Robertson's proposed allegations, specifically allege that Sun Life entered into contracts with other putative class members. There is thus no basis to infer that other putative class members had contracts with Sun Life similar to Robertson's contract, or that Sun Life breached those contracts.
Further, neither Robertson's complaint, nor his proposed allegations, indicate that "the class is so numerous that joinder of all members is impracticable." See Fed. R. Civ. P. 23(a)(1). Robertson identifies only two other investors that he alleges are similarly situated to him.
Because the factors set out in Foman v. Davis strongly counsel against permitting amendment, the Court denies leave to amend. 371 U.S. at 182.
Robertson moves to set a class certification schedule.
In a previous order, the Court directed that any motion to set a class certification schedule identify what, if any, class claims remain in the case following the dismissal of Robertson's racketeering claims.
Because Robertson fails to identify any class claim remaining in this case, the Court perceives no good cause to extend the class certification deadline. Moreover, Robertson fails to explain his delay in timely requesting an extension of the deadline to move for class certification. Robertson notes that Sun Life previously agreed to set a class certification schedule.
For the foregoing reasons, the motion for leave to amend is DENIED. The motion to set a class certification schedule is also DENIED.