United States District Court, E.D. Louisiana
ORDER AND REASONS
WELLS ROBY UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion for Leave to File Second Supplemental
and Amended Complaint (R. Doc. 102) filed by Parkcrest
Builders, LLC seeking an order from the Court to allow it to
file its first supplemental and amended complaint. The motion
is opposed. R. Doc. 120. The motion was submitted on March
29, 2017. For the following reasons, the motion for leave to
file is GRANTED.
diversity action was filed on May 8, 2015 by the Plaintiff
Parkcrest Builders, LLC (“Parkcrest”) seeking a
Declaratory Judgment and Judgment for Damages in connection
with a contract dispute between itself, as the original
contractor, and Defendant HANO. R. Doc. 21, p. 2. Parkcrest
alleges that on March 4, 2013 it entered into a contract with
Defendant for the construction of the Florida Avenue: New
Affordable Housing Units (“the Project”) for the
amount of $11, 288, 000.00 R. Doc. 1, p. 3. During work on
the Project, there were a number of delays which Parkcrest
argues were not in its control. As a result of these delays,
Parkcrest states that on April 10, 2015 HANO sent a Notice of
Final Default and Termination to Parkcrest stating that
Parkcrest was in final default of the contract and
terminating Parkcrest's right to complete the project. R.
Doc. 1, p. 7. Parkcrest alleges that the delays HANO cited as
the justification for the notice of default were not
attributable to Parkcrest. R. Doc. 21, p. 2. As such, arguing
that it was not in default, Parkcrest alleges that the
termination was “for convenience” and therefore
entitles it to remuneration under its contract with HANO. R.
Doc. 21, p. 3. Parkcrest has also alleged that HANO has
breached the contract. Id. HANO has filed a
counterclaim alleging that the delays were the sole fault of
Parkcrest and seeking damages for the delays. R. Doc. 23.
HANO also asserted claims against Parkcrest that arose after
a Takeover Agreement was executed with Liberty Mutual.
Id. As part of that agreement, Liberty Mutual
retained the Plaintiff as the “completion
contractor” to carry out the contract work and to deal
directly with the Defendant for the remainder of the Project.
initially filed its First Supplemental and Amended Complaint
on March 22, 2016. R. Doc. 21. At this time, Parkcrest seeks
to file its second supplemental and amended complaint to (i)
add background facts that occurred after Parkcrest filed its
First Supplemental and Amended Complaint and (ii) assert
additional claims of negligence against HANO for damages
arising after the execution of the Takeover Agreement. R.
has opposed the motion in part. R. Doc. 120. In particular,
HANO argues that the motion to amend should be denied because
Parkcrest's negligence claims are futile given that they
are prescribed under Louisiana law. Id. at p. 4.
Standard of Review
Federal Rule of Civil Procedure 15(a) governs the amendment
of pleadings before trial. Rule 15(a) allows a party to amend
its pleadings “only with the other party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). Moreover, the Rule urges that the Court
“should freely give leave when justice so
requires.” Id. In taking this liberal
approach, the Rule “reject[s] the approach that
pleading is a game of skill in which one misstep by counsel
may be decisive to the outcome and accept the principle that
the purpose of pleading is to facilitate a proper decision on
the merits.” Conley v. Gibson, 355 U.S. 41, 48
15(a) requires a trial court ‘to grant leave to amend
freely, ' and the language of this rule ‘evinces a
bias in favor of granting leave to amend.'”
Jones v. Robinson Prop. Grp., 427 F.3d 987, 994 (5th
Cir. 2005) (internal quotations marks omitted) (quoting
Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282,
286 (5th Cir.2002)). When denying a motion to amend, the
court must have a “substantial reason”
considering such factors as “‘undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failures to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party ...and
futility of the amendment.'” Marucci Sports,
LLC v. Nat'l Collegiate Athletic Ass'n, 751 F.3d
368, 378 (5th Cir. 2014) (quoting Jones, 427 F.3d at
amendment is deemed to be futile if it would be dismissed
under a Rule 12(b)(6) motion. Id. (citing Briggs
v. Miss., 331 F.3d 499, 508 (5th Cir 2003)). “It
is well-established, of course, that the Rule 12(b)(6)
analysis necessarily incorporates the federal pleading
standard articulated in Bell Atlantic Corp. v.
Twombly: ‘To pass muster under Rule 12(b)(6), [a]
complaint must have contained ‘enough facts to state a
claim to relief that is plausible on its face.'”
Int'l Energy Ventures Mgmt., L.L.C. v. United Energy
Grp., 818 F.3d 193, 200 (5th Cir. 2016). As such, the
Court must accept all well-plead facts as true and view them
in the light most favorable to the non-moving party.
Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir.2004) (internal
quotation omitted). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).Where viability of a
claim is at least facially possible, futility does not
provide grounds for denying an amendment. Jaso v. The
Coca Cola Co., 435 F.App'x 346, 353-54 & n. 6
seeks to file its second supplemental and amended complaint
to (i) add background facts that occurred after Parkcrest
filed its First Supplemental and Amended Complaint and (ii)
assert additional claims of negligence against HANO for
damages arising after the execution of the Takeover
Agreement. R. Doc. 102. The motion to amend was filed within
the deadline set by the District Court; therefore, the motion
is analyzed pursuant to the liberal standards of Federal Rule
of Civil Procedure 15.
has opposed the motion to the extent that Parkcrest seeks to
add a claim of negligence. R. Doc. 120. In particular, HANO
argues that any claims that arose before March 6, ...