Motion To Amend

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The Fourth Circuit’s ruling last Friday in Galustian v. Peter reinstated a Iraq-based defamation case which had been dismissed by the District Court on the grounds of forum non conveniens. The opinion also contains some significant points on amendments as of right under the Rules of Civil Procedure.

The lawsuit was brought in the Eastern District of Virginia by Galustian, a resident of the United Arab Emirates. Peter, the Defendant, was a resident of Virginia. Galustian contended that Peter had defamed him to a trade association of contractors working in…

Continue Reading Fourth Circuit Reverses Forum Non Conveniens Dismissal, Says Iraq Might Not Be An Adequate Forum For A Defamation Lawsuit

The Court denied a Motion to Amend, finding that there was undue delay in seeking the amendment.  Discovery in the case had gone on for years and had been completed months before the Motion to Amend was filed.  Plaintiff furthermore had the documents on which the Motion was based in its possession for two years.

The Court also denied the Motion based upon the prejudice to the Defendant.  The new causes of action would have changed the Defendant’s approach to discovery.  Furthermore, one of the proposed new claims was for…

Continue Reading Harco National Insurance Co. v. Grant Thornton LLP, February 16, 2009 (Tennille)(unpublished)

Today, in Cope v. Daniel, the Business Court denied the Defendant’s request to amend its Answer to add a statute of limitations defense and a defense of ERISA preemption.  Judge Tennille found that the Defendant had unduly delayed by raising the statute of limitations defense, and that the Plaintiff would be prejudiced if it were allowed.  The Court denied the ERISA amendment for another reason, finding it to be futile.

The case involves a dispute between shareholders of a medical practice.  Plaintiff alleged that the Defendant engaged in financial misdoings, including charging unauthorized expenses to the practice, improperly reporting to taxing authorities, paying himself unauthorized distributions of salary and bonus, and overcharging rent.

The amendment on the statute of limitations was requested fourteen months after the original Answer was filed.  The Court noted that the Complaint asserted claims based on events beginning as far back as 1999, and stated "[n]o questions have been raised as to whether Defendants knew at the time the complaint was filed . . . what claims were being asserted against them and during what timeframe."

The Court denied the Motion, holding that "[a] delay of over fourteen months before filing a statutes of limitation defense is an undue delay and causes undue prejudice to Plaintiff."  It also held that "[a] defense based upon statutes of limitation is, by definition, time sensitive. A delay of over fourteen months before asking for an amendment could be acceptable in certain circumstances. . . . The situation where statutes of limitations defense is raised is not one of those circumstances."

The ERISA claim came in for a different analysis.Continue Reading Motion To Amend To Add Statute Of Limitations Defense Denied Based On Undue Delay