MARK FALK, Magistrate Judge.
This matter comes before the Court upon Plaintiff's motion for leave to amend its Complaint. The motion is opposed. The motion is decided on the papers. Fed.R.Civ.P. 78(b). For the reasons set forth below, the motion is
This is an action for secondary-line price discrimination under the Robinson-Patman Act ("RPA").
In 1995, Plaintiff Marjam Supply Company ("Marjam") became one of Firestone's distributors. (
On December 6, 2011, Marjam filed a Complaint asserting antitrust claims. The seven count Complaint included claims against Firestone and two manufacturing representatives, Defendants Performance Roofing Associates, Inc. ("Performance") and Roofing Specialties, Inc. ("RSI"), for violations of Sections 13(a) and (d) of the RPA (Counts One and Three), and claims against Allied, Performance and RSI for violations of Section 13(f) (Count Two). The Complaint also contained various state law claims.
On March 5, 2012, Defendants filed motions to dismiss the Complaint. (CM/ECF. Nos. 18, 20.) In an Order and Opinion on November 30, 2012, the Court granted in part and denied in part Defendants' motions.
On December 12, 2012, Marjam filed a motion to stay a commercial arbitration proceeding with Firestone pending before the American Arbitration Association. On January 7, 2013, the Court denied Marjam's motion. (CM/ECF. No. 49.)
On April 4, 2013, the Court entered a Pretrial Scheduling Order pursuant to which discovery was set to close on January 1, 2014, and any motion to add new parties or to amend the pleadings were to be filed by July 15, 2013. (CM/ECF No. 52.) According to Marjam, Firestone failed to timely respond to discovery and Marjam requested an extension of time within which to amend. The Court entered an Amended Pretrial Scheduling Order on July 26, 2013, directing Firestone to respond to Marjam's discovery no later than July 31, 2013, and extending the deadline to amend pleadings to September 23, 2013. (CM/ECF. No. 65.)
Marjam seeks leave to amend its Complaint to add claims for unlawful price discrimination against four new parties—three distributors and a related entity of Firestone. Specifically, Marjam seeks to allege violations of 13(f) against distributors ABC, Bradco, and S&K Distribution, LLC d/b/a New Castle Building Products ("New Castle") (collectively "Distributors"). Marjam also seeks to assert violations of Sections 13(a) and (d) against a Genflex Roofing Products, LLC ("Genflex"), a related entity of Firestone from which Marjam purchased and distributed Genflex brand products.
Marjam argues that the proposed Amended Complaint is more factually detailed and contains viable claims under the RPA. (Plaintiff's Brief in Support ("Pl.'s Br.") 5-11.) Asserting alleged instances of unlawful price discrimination by Distributors and Genflex, Marjam contends that the proposed Amended Complaint sets forth sufficient facts to state a claim for relief. Marjam asserts that the proposed claims against the Distributors are not futile because they are not based on the same allegations which resulted in the dismissal of the Section 13(f) claim against Allied; instead, Marjam claims to have pled new and additional facts gleaned from documents most recently produced by Firestone. Marjam also maintains that it did not unduly delay in seeking to amend its pleading. Marjam claims it only received the discovery that supports its claims in July and August 2013, and that it complied with the Court's procedure and September 23, 2013 deadline with respect to seeking leave to amend. (CM/ECF No. 65.) Finally, Marjam contends that Firestone will not be prejudiced by the amendment. Alleging that it was Firestone's initial delay in furnishing discovery that resulted in the extension of the deadline to amend, Marjam maintains that Firestone cannot now claim prejudice.
Firestone opposes the motion arguing that Marjam unduly delayed in seeking leave to amend and that Firestone would be prejudiced by the addition of the Distributors as defendants in the case. Noting that the Complaint was filed some two years ago and that discovery is set to close on April 1, 2014, Firestone claims that it will be prejudiced if Marjam is permitted to add three new distributors as parties at this stage of the litigation. Pointing out that it is the only defendant currently in the case and only Section 13(a) and (d) claims remain against it, Firestone argues that the addition of the Distributors would likely result in the extension of discovery and an increase of its defense costs. Firestone also contends that the claims Marjam seeks to assert against the Distributors for violation of Section 13(f) would be futile as similar claims against Allied have already been dismissed on motion. Lastly, Firestone maintains that any claims against GenFlex would be futile as the company was merged out of existence on December 31, 2010.
Motions to amend pleadings are governed by Federal Rule of Civil Procedure 15(a). Once a responsive pleading has been filed, "a party may amend its pleadings only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Leave to amend is generally granted unless there is: (1) undue delay or prejudice; (2) bad faith; (3) dilatory motive; (4) failure to cure deficiencies through previous amendment; or (5) futility.
The futility analysis on a motion to amend is essentially the same as a Rule 12(b)(6) motion.
The issue before the Court is whether Marjam unduly delayed in seeking leave to amend and whether the proposed claims are futile.
Marjam did not unduly delay in seeking leave to amend. First, the July 26, 2013 Amended Pretrial Scheduling Order extended the deadline to amend pleadings to September 23, 2013. (CM/ECF. No. 65.) Marjam sought leave to amend its pleading by the date and in compliance with the directives contained in the Court's Order. Second, according to Marjam, it only learned of the facts which would support its claims from the discovery furnished by Firestone in July and August 2013. (Plaintiff's Reply Brief ("Pl.'s Reply") 5-6.) It is conceivable that it could take Marjam a month to cull through documents and prepare its amended pleading. Furthermore, discovery did not open until April 4, 2013, after the Court decided motions to dismiss and other pretrial motions. Third, Firestone participated in a meet and confer with Marjam and agreed that September 23, 2013, would be the new date for amending pleadings. (Pl.'s Reply 2.) Most importantly, Firestone has not demonstrated any actual prejudice by the timing of Marjam's motion. Any additional discovery necessitated by the addition of the parties will likely require only a short extension of the discovery end date.
Marjam's proposed claims for violation of § 13(f) of the RPA against Distributors are not so "clearly futile" so as to deny the motion to amend.
Here, Marjam alleges in Count Three additional basic facts that the Distributors knowingly induced and/or knowingly received price discriminations from Firestone in violation of Section 13(f). (Am. Compl. ¶¶ 134-146.) In addition to the conclusory allegations that the Distributors knew or induced the pricing, Plaintiff now pleads specific conduct relative to each of the Distributors. For example, Marjam alleges that Bradco knowingly induced or received additional incentives which were implemented at Bradco's urging. (Am. Compl. ¶¶ 135-138.) In particular, Marjam alleges that Bradco solicited Firestone to reduce "gates" so that it could achieve the same incentive dollars it had made the prior year despite business being down. (Am. Compl. ¶ 135.) Marjam also names particular products, identifies the forms and percentages of price advantages, and specifies the years involved in the alleged pricing discrimination. Alleging that ABC acquired Bradco in 2010, Marjam pleads that ABC similarly knowingly induced or received discriminatory pricing in the form of incentive rebates at a rate significantly better than Marjam. (Am. Compl. ¶¶ 139.) In support of its price claims against New Castle, Marjam's proposed amended complaint asserts that New Castle received discrimination in the form of rebates as well as favorable extended payment terms. (Am. Compl. ¶¶ 140-141.) Thus, the Court finds that Marjam has sufficiently alleged its Section13(f) claims against the Distributors to satisfy the minimal notice pleading requirement encompassed in the Rules, as well as the plausibility threshold addressed in
Marjam seeks to amend its Complaint to assert violations of Sections 13(a) and 13(d) of the RPA against Genflex. According to documents supplied by Firestone, Genflex was "merged out of existence" on December 31, 2010. (Defendant's Brief 15; Declaration of Christopher Viceconte, Ex. A.) Firestone therefore alleges that any claims against Genflex would be futile. However, according to Marjam, Genflex executed a settlement agreement with Marjam in August 2013, pursuant to which Marjam paid Genflex more than $71,000 for product purchases. (Pl.'s Reply 12; Declaration of L. Sharon, Esq., Ex. Q.) Marjam also states that Firestone did not disclose that Genflex was no longer a viable entity at the time the parties entered into the settlement agreement. (Pl.'s Reply 22.) Finally, Marjam points out that Firestone's opposition is silent on whether it has assumed Genflex's liabilities. (
For the reasons set forth above, Marjam's motion to amend is