United States District Court, D. Utah, Central Division
VOX MARKETING GROUP, LLC, a Utah limited liability company, Plaintiff,
PRODIGY PROMOS L.C., a Utah limited liability company; et al., Defendants. PRODIGY PROMOS L.C., a Utah limited liability company, Counterclaim Plaintiff,
VOX MARKETING GROUP, LLC, a Utah limited liability company; et al., Counterclaim Defendants.
District Judge Howard C. Nielson, Jr.
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
case was referred to Chief Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(A). Before the court
is Defendants Prodigy Promos, L.C.; Jason Marsh; Jon Priday;
Tyler Fredrickson; Eric Oldson; Spencer Oldson; and Michael
Perley’s (collectively, “Prodigy
Defendants”) motion for leave to amend their
answer. Plaintiff and Counterclaim Defendant Vox
Marketing Group, LLC and Counterclaim Defendants Christopher
S. Rollins, Alex Wolfe, Aaron Scott, and Shane Brady
(collectively, “Vox Parties”) oppose the motion.
The court has carefully reviewed the written memoranda
submitted by the parties. Pursuant to Civil Rule 7-1(f) of
the Rules of Practice for the United States District Court
for the District of Utah, the court has concluded that oral
argument is not necessary and will decide the motion on the
basis of the written memoranda. See DUCivR 7-1(f).
Prodigy Defendants’ motion is brought under Rule
15(a)(2) of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 15(a)(2). Under that rule,
“[t]he court should freely give leave” to amend
pleadings “when justice so requires.”
Id.; see also Foman v. Davis, 371 U.S. 178,
182 (1962). The decision about whether to provide a party
leave to amend its pleadings “is within the discretion
of the trial court.” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quotations
and citation omitted). “Refusing leave to amend is
generally only justified upon a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.” Bylin v.
Billings, 568 F.3d 1224, 1229 (10th Cir. 2009)
(quotations and citation omitted). The court will address
those factors in turn.
Prodigy Defendants assert that their motion is timely because
they only recently discovered the basis of their proposed
amendment. Notwithstanding the Vo x Parties’ arguments
to the contrary, the court accepts the Prodigy
Defendants’ assertion as being made in good faith.
Furthermore, the court notes that there is no trial date
scheduled in this case and, according to the most recently
entered scheduling order, trial is not expected to begin
until the third quarter of 2020. Under those circumstances,
the court cannot say that the Prodigy Defendants’
motion for leave to amend is untimely or was unduly delayed.
second, and most important, factor in deciding a motion to
amend the pleadings, is whether the amendment would prejudice
the nonmoving party.” Minter v. Prime Equip.
Co., 451 F.3d 1196, 1207 (10th Cir. 2006). Importantly,
the Vox Parties have not presented any arguments concerning
prejudice. Accordingly, the court is left to conclude that
the Vox Parties would not be prejudiced by the Prodigy
Defendants’ proposed amendment.
Bad Faith or Dilatory Motive
Parties argue that the Prodigy Defendants’ motion for
leave to amend is being brought in bad faith. The Vox Parties
argue that, prior to removal of the action to this court, the
Prodigy Defendants twice amended their counterclaim without
seeking or obtaining leave of court. The Vox Parties contend
that the Prodigy Defendants are now attempting to obtain
approval for those amendments by indicating in their current
proposed amendment that their previously asserted amended
counterclaim is incorporated by reference into their current
proposed amendment. The Vox Parties contend that, through the
instant motion, the Prodigy Defendants are attempting to
“sneak the amended counterclaim in through the back
door, ”which evidences bad faith.
Parties admit that they answered the Prodigy
Defendants’ amended counterclaim. In that answer, the
Vox Parties indicated that the Prodigy Defendants’
amended counterclaim was “out of order and should be
stricken” and that the Vox Parties “reserve[d]
all objections to the improper filing of the Amended
Counterclaim.” Importantly, however, the Vox Parties have
never moved the court for any relief regarding the Prodigy
Defendants’ amended counterclaim, even in the face of
the instant motion. If the Vox Parties truly believed that
the Prodigy Defendants’ amended counterclaim was
“out of order and should be stricken,
” the Vox Parties should have filed a motion
seeking that relief. Instead, the Vox Parties appear to be
asking the court to strike or disallow the Prodigy
Defendants’ amended counterclaim through their
opposition to the instant motion, which is not permitted
under this court’s local rules. See DUCivR
7-1(b)(1)(A) (“No motion, including but not limited to
cross-motions and motions pursuant to Fed.R.Civ.P. 56(d), may
be included in a response or reply memorandum. Such motions
must be made in a separate document.”). Under those
circumstances, the court cannot conclude that the Prodigy
Defendants’ are attempting in bad faith to “sneak
the amended counterclaim in through the back
Failure to Cure Deficiencies in Previous Amendments
the Prodigy Defendants’ assertion that they only
recently learned of the basis for their proposed amendment,
which the court accepts as being made in good faith, the
court concludes that there has not been any failure on the