United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
the Court is defendant Wingmaster Sales, LLC's
(Wingmaster) motion for leave to amend (Dkt. # 51) its
counterclaim (Dkt. # 43). Wingmaster seeks leave to amend its
counterclaim in order to add a count for violation of
Oklahoma's Fair Practices of Equipment Manufacturers,
Distributors, Wholesalers and Dealers Act (Fair Practices
Act), Okla. Stat. Tit. 78, § 244 et seq. Dkt. #
51-2, at 8.
October 13, 2017, the Court filed a corrected scheduling
order (Dkt. # 30); it stated, inter alia, that
November 17, 2017, was the deadline for motions for joinder
of additional parties or amendment to complaint; February 20,
2018, is the discovery cutoff; interrogatories and Rule 34
requests must have been made thirty days in advance of the
discovery cutoff (i.e. by January 21,
2018); and dispositive motions are due March 26,
November 7, 2017, Wingmaster moved to file a first amended
complaint (Dkt. # 44), which the Court granted in part and
denied in part (Dkt. # 46). On November 21, 2017, Wingmaster
filed its answer (Dkt. # 42) and counterclaim (Dkt. # 43) to
plaintiff's original complaint. On December 13, 2017,
plaintiff filed its first amended complaint (Dkt. # 47),
adding Schlabach as a party to counts one through four. On
December 27, 2017, Schlabach filed his answer (Dkt. # 50) and
counterclaim (Dkt. # 49) to plaintiff's first amended
complaint. And on January 12, 2018 plaintiff filed its answer
(Dkt. # 50) to Schlabach's counterclaim.
January 21, 2018, Wingmaster moved for leave to amend its
counterclaim (Dkt. # 51). Plaintiff filed a response (Dkt. #
53) in objection.
amend a counterclaim, a party must first move for leave to
amend under Fed.R.Civ.P. 15(a). Ahmad v. Furlong,
435 F.3d 1196, 1202 (10th Cir. 2006); Harris v. United
States Dep't of Veterans Affairs, 126 F.3d 339, 345
(10th Cir. 1997). Rule 15(a) provides that “leave shall
be freely given when justice so requires.” Minter
v. Prime Equipment Co., 451 F.3d 1196, 1204 (10th Cir.
2006); Bradley v. Val-Mejias, 379 F.3d 892, 900
(10th Cir. 2004). A denial of a motion to amend may be
warranted, however, where the Court finds, on the part of the
movant, “ undue delay, bad faith or dilatory motive . .
., repeated failure to cure deficiencies . . ., [or] undue
prejudice to the opposing party by virtue of allowance . . .
.” Foman v. Davis, 371 U.S. 178, 182 (1962).
In addition, denial may be warranted where the “party
seeking amendment knows or should have known of the facts
upon which the proposed amendment is based but fail[ed] to
include them in the original [pleading] . . . .”
Frank v. U.S. West, Inc., 3 F.3d 1357, 1366 (10th
Cir. 1993) (quoting Las Vegas Ice & Cold Storage Co.
v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)).
argues that the Court should grant it leave to amend its
counterclaim to add a count for violation of Oklahoma's
Fair Practices Act because there is no evidence of undue
delay, dilatory motive, or bad faith on its part. Dkt. # 51,
at 4-7. In addition, Wingmaster argues that allowing leave to
amend will not prejudice plaintiff because the “same
operative nucleus of facts” alleged in Wingmaster's
counterclaim give rise to Wingmaster's proposed Fair
Practices Act count, and, therefore, “[plaintiff] has
been on notice of the facts at issue and will not be
prejudiced in defending the same even if they support another
theory of relief.” Dkt. # 51, at 4-5 (quoting
Minter, 451 F.3d at 1208 (“Courts typically
find prejudice only when the amendment unfairly affects the
defendants in terms of preparing their defense to the
responds that Wingmaster's proposed Fair Practice's
Act count is untimely and prejudicial to plaintiff because
the discovery deadline is February 20, 2018, the deadline to
serve interrogatories and requests for production of
documents was on January 21, 2018, and allowing
“Wingmaster to amend and add an additional claim now
would require the resetting of all deadlines, [and] put the
parties back into the initial stages of discovery . . .
.” Dkt. # 53, at 5. The prejudice is all the more
pronounced, plaintiff argues, because Wingmaster was aware of
the facts giving rise to its proposed Fair Practice's Act
count when it filed its counterclaim Id. (citing
King & King Enters. v. Champlain Ptroleum Co.,
446 F.Supp. 906, 914 (E.D. Okla. 1978)). Additionally,
plaintiff argues that Wingmaster's proposed Fair
Practices Act count is futile. Id.
Court finds that Wingmaster's motion to amend its
counterclaim is untimely and prejudicial to plaintiff.
Wingmaster has failed to offer any explanation for its delay
or why it could not have pled its proposed Fair
Practice's Act count when it filed its counterclaim over
two months ago. Indeed, by Wingmaster's own admission,
its proposed Fair Practice's Act count arises from the
same nucleus of operative facts alleged in Wingmaster's
counterclaim. In other words, Wingmaster, when filing its
counterclaim, was aware of the facts giving rise to its
proposed Fair Practice's Act count. It should, therefore,
have alleged this count then, and the Court see no reason why
justice requires granting Wingmaster leave to amend to add
this count now so close to the discovery deadline.
IS THEREFORE ORDERED that Wingmaster's motion
for leave ...