United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
Motion for Leave to File an Amended Complaint is before me.
Record Doc. No. 117. These are consolidated diversity cases
originally brought by plaintiff and judgment creditor Robert
Najor against defendant and judgment debtor Hai Nguyen
("Nguyen") and defendant Trustee of the Nguyen
Family Trust ("the Trustee"). The more recently
filed of the two cases seeks to recover property and damages
as a result of Nguyen's transfer of real estate to the
Nguyen Family Trust ("the Trust"), all in execution
of a judgment in Najor's favor against Nguyen and his
company Plaquemines Clay Co., LLC ("Plaquemines
Clay") for $350, 000, plus interest and costs. Record
Doc. No. 23.
motion seeks to amend his complaint to assert a Louisiana
state law oblique action against Nguyen and his company
National Marine Financing Corporation ("National
Marine"). The Trustee opposes the motion on the ground
that plaintiff's right to bring an oblique action has
prescribed under Louisiana law and amendment is therefore
futile. Record Doc. No. 122 at p. 2. Plaintiff also seeks to
assert an attorney's fees claim against all defendants
based on fraud. Record Doc. No. 117-1 at pp. 22-23; Record
Doc. No. 123-1 at p. 9. Defendant opposes this claim on the
grounds that it would be prejudiced in having to defend
against the claim. Record Doc. No. 122 at p. 4.
proposed amended complaint reiterates the facts pled in his
initial complaint, specifically, that in December 2002,
Nguyen and/or National Marine acting under Nguyen's
direction transferred immovable property located at 1725
Lakeshore Drive, New Orleans, Louisiana 70122 ("the
Property"), to the Trust for $600, 000. Record Doc. No.
117-1 at p. 8. The motion papers suggest that the Property
was titled in National Marine's name at the time of the
transfer. Record Doc. No. 117-1 at pp. 7-8; see also
Record Doc. No. 112-1 at pp. 1-2. The proposed amended
complaint alleges that National Marine is the alter ago of
Nguyen, and that Nguyen is the sole shareholder of the
company. Record Doc. No. 117-1 at p. 8. Plaintiff alleges
that this transfer was an absolute simulation because the Trust
never paid the $600, 000 purchase price and Nguyen has
retained corporeal possession of the Property by continuing
to live there. Id. at p. 8, 18. Plaintiff further
alleges that Nguyen engaged in the simulation for the purpose
of "putting the [P]roperty beyond the reach of his
creditors" and that Nguyen's failure to demand
return of the title of the Property to his name "has
caused or increased his current insolvency."
Id. at pp. 11-12.
in the record, plaintiff stated that he first learned that
the 2002 Property transfer may have been a simulation on May
18, 2016, during an informal conversation with Nguyen
following a judgment debtor examination. Record Doc. No.
112-1 at p. 2; Record Doc. No. 112-2 at p. 2. According to
plaintiff, "[Nguyen's] statements were the first
time that Mr. Najor learned that it was possible that the
[Property] had been transferred without consideration and/or
without cause as stated in the Act of Sale." Record Doc.
No. 112-1 at p. 2 n. 1. Plaintiff's complaint in C.A. No.
16-15412, filed on October 11, 2016, less than five months
later, asserted a claim against Nguyen and the Trust to
declare the 2002 Property transfer a simulation and absolute
nullity, such that plaintiff could execute his rights against
as a judgment creditor of Nguyen against the
Property. Najor v. Nguyen et al., C.A.
16-15412, Record Doc. No. 1 at p. 15. Plaintiff also asserted
a revocatory action against the Trust to have the Property
transfer set aside and returned to Nguyen's estate to
satisfy plaintiff's judgment. Id. at p. 10.
present motion seeks to add an oblique action claim as an
alternative legal theory of recovery arising from the same
underlying facts alleged in plaintiff's original
complaint surrounding the alleged simulated sale of the
policy of the Federal Rules of Civil Procedure is liberal in
favor of permitting amendment of pleadings, and Rule 15(a)
evinces a bias in favor of granting leave to amend. Unless
there is a substantial reason to deny leave to amend, the
discretion of the district court is not broad enough to
permit denial. Stripling v. Jordan Prod. Co., 234
F.3d 863, 872 (5th Cir. 2000) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994);
Martin's Herend Imports, Inc. v. Diamond & Gem
Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999);
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,
597-98 (5th Cir. 1981)). Thus, “[t]he court should
freely give leave when justice so requires, ”
Fed.R.Civ.P. 15(a)(2), but such leave “is by no means
automatic.” Wimm v. Jack Eckerd Corp., 3 F.3d
137, 139 (5th Cir. 1993) (quotation omitted). Relevant
factors to consider include “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, and futility of
is within the district court's discretion to deny a
motion to amend if it is futile.” Stripling,
234 F.3d at 872-73 (citation omitted). Futility in this
context means “that the amended complaint would fail to
state a claim upon which relief could be granted. . . .
[Thus, ] to determine futility, we will apply the same
standard of legal sufficiency as applies under Rule
12(b)(6).” Id. at 873 (quotations and
citations omitted); accord Fenghui Fan v. Brewer,
377 Fed.Appx. 366, 367 (5th Cir. 2010). “To survive a
Rule 12(b)(6) motion to dismiss, the plaintiff must plead
‘enough facts to state a claim to relief that is
plausible on its face.' ‘Factual allegations must
be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).'”
In Re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)) (footnote omitted).
amendment is futile "when leave is sought to add a claim
upon which the statute of limitations has run."
F.D.I.C. v. Conner, 20 F.3d 1376, 1385 (5th Cir.
1994). Nonetheless, an amendment to a complaint will relate
back to the filing date of the original complaint if the
claim asserted in the amended complaint arises "out of
the conduct, transaction, or occurrence set out - or
attempted to be set out in the original pleading."
Fed.R.Civ.P. 15(c)(1)(B). "If a claim asserted in an
amended pleading relates back to the date of the original
complaint and is thus not barred by limitations, then leave
to amend should ordinarily be granted." Conner,
20 F.3d at 1385 The theory behind relation back of amendments
is that "once litigation involving particular conduct or
a given transaction or occurrence has been instituted, the
parties are not entitled to the protection of the statute of
limitations against the later assertion by amendment of
defenses or claims that arise out of the same conduct,
transaction, or occurrence as set forth in the original
pleading." 6A Fed. Prac. & Proc. Civ. § 1496
(3d ed.). Allowing for augmentation of claims that were
asserted before the limitations period has run "does not
offend the purpose of a statute of limitations, which is
simply to prevent the assertion of stale claims."
Conner, 20 F.3d at 1385.
a plaintiff attempts to interject entirely different conduct
or different transactions or occurrences into a case, then
relation back is not allowed." Id. However,
"if a plaintiff seeks to correct a technical difficulty,
state a new legal theory of relief, or amplify the
facts alleged in the prior complaint, then relation back is
allowed." Id. at 1386 (emphasis added). If the
alteration of claims contained in an amended complaint is
“so substantial that it cannot be said that the
defendant was given adequate notice of the conduct,
transaction, or occurrence that forms the basis of the claim
or defense, then the amendment will not relate back.”
Id. (quoting 6A Fed. Prac. & Proc. Civ. §
1496 (3d ed.). Conversely, "[a]s long as the amended
complaint refers to the same transaction or occurrence that
formed the basis for the original complaint and the defendant
was put on notice of the claim by the first complaint, there
will be no bar to ...