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holding that "[Delaware Superior Court Civil Rule 15] provides that leave to amend a complaint shall be freely given when justice so requires."
Summary of this case from Mooney v. Pioneer Nat. Res. Co.Opinion
C.A. No. 99C-07-323-JRJ.
Submitted: July 22, 2003.
Decided: October 14, 2003.
Upon Plaintiffs' Motion to Amend the Complaint — GRANTED
Thomas S. Neuberger, Esquire, Thomas S. Neuberger, P.A., Two East Seventh Street, Suite 302, Wilmington, Delaware 19801 and John M. LaRosa, Esquire, Law Office of John M. LaRosa, Two East Seventh Street, Suite 302, Wilmington, Delaware 19801, for plaintiffs.
Michael F. Foster, Department of Justice, Carvel State Office Building, 820 North French Street, Wilmington, Delaware 19801, for defendants.
OPINION
This is the Court's decision on plaintiff's Motion to Amend the Complaint. For the reasons set forth below, the Court finds that the plaintiffs have satisfied the requirements of Delaware Superior Court Civil Rule 15 relating to amendments, and justice requires permitting leave to amend so the plaintiffs' claims can finally be litigated on the merits.
I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
This case has an unfortunate and tortured procedural history. Prior to the termination of her employment, Plaintiff Joyce Parker worked at the Ferris School as a state nurse for the Department of Heath and Social Services of the State of Delaware. She was discharged by a letter dated July 31, 1996, which she received on August 1, 1996. Defendants assert that Parker was fired for making personal charges at a pharmacy on the Ferris School's business account and for faking that she was unable to work due to injury. Parker alleges that her termination was a result of race discrimination.
See Termination Letter, in the Appendix to Defendants' State of Delaware, Thomas Eichler and Diane Gadow's Memorandum in Support of their Motion in Opposition to Plaintiffs' Motion to Amend the Complaint ("App.") (Docket No. 33) at Tab C.
Plaintiffs' initial counsel, before being suspended from the practice of law, first sued the defendants in the United States District Court for the District of Delaware ("District Court") on July 30, 1998 ("USDC I"), just within the statute of limitations. Exactly one year later, plaintiffs' initial counsel filed a complaint (the "Original Complaint") against the same defendants in this Court ("State I"). On August 25, 1999, upon a motion by the defendants, State I was removed to District Court because State I and USDC I were considered identical actions. In March 2000, the District Court dismissed without prejudice USDC I for lack of personal jurisdiction due to "plaintiffs' failure to properly serve defendants." In June 2000, plaintiffs' initial counsel again sued defendants in District Court ("USDC II"). The District Court ultimately dismissed USDC II on June 27, 2001 because plaintiffs "not only failed to serve defendants timely . . . but violated an order of the court" by their failure to properly serve defendants on or before November 17, 2000. That same day, the District Court remanded State I back to Superior Court "because the reason given for removal is no longer applicable." Thus, the instant case, State I, is the only surviving suit.
Effective July 8, 2002, plaintiffs' prior counsel was suspended from the practice of law for three years. Her admitted violations included, inter alia, failure to provide competent representation, failure to act with reasonable diligence and promptness, failure to keep client reasonably informed, and failure to take steps necessary to protect clients' interest. See In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: Caroline Patricia Ayres, Del. Supreme Court No. 306, 2002 (Decided July 8, 2002).
C.A. No. 98-CV-445 SLR. For a view of the complaint filed in this first federal action see Plaintiffs' Opening Legal Memorandum in Support of Their Motion to Amend the Complaint, Dismiss Counts I and III-XIII, and Dismiss Without Prejudice Plaintiff Willie Parker's Claim ("Pls.' Opening Mem.") (Docket No. 30) at Tab J.
A two-year statute of limitations applies because the United States Supreme Court has characterized discrimination claims based on 42 U.S.C. § 1983 as personal injury actions. See 10 Del. C. § 8119; Smith v. State, No. 99-440-JF, 2001 U.S. Dist. LEXIS 10594 (D. Del. July 24, 2001).
Throughout this Opinion we shall refer to this first state court complaint as the "Original Complaint" because it is the pleading which the Plaintiffs seek to amend in their instant Motion.
C.A. No. 99C-07-323 WTQ.
See Pls.' Opening Mem. at 5, and at Tabs L and I.
App. at Tab P.
C.A. No. 00-CV-599 SLR. For a view of the complaint filed in this second federal action see App. at Tab Q.
App. at Tab S.
App. at Tab R; Pls. Opening Mem. At Tab I.
When State I was commenced in 1999, defendants responded by removing that case to federal court because both USDC I and State I were essentially identical actions. We note that State I appears to survive a statute of limitations defense because commencement of suit in the federal District Court for the District of Delaware is equivalent to one brought in the Superior Court of Delaware for the purposes of applying the savings statute. See Frombach v. Gilbert Assocs., 236 A.2d 363 (Del. 1967), cert. denied, 391 U.S. 906 (1968); Del. Code Ann. Tit. 10 Del. C. § 8118 (1999).
Plaintiff Joyce Parker also pursued some administrative remedies. She previously filed two complaints with the Equal Employment Opportunity Commission (EEOC). One EEOC complaint alleged race, disability and age discrimination and the second one alleged retaliation. The first EEOC complaint was dismissed because it was not filed within the time limit required by law, and the second was dismissed because the Commission determined that it would not be able to investigate the charge within 180 days from the date jurisdiction was assumed. Likewise, Parker's appeal to the Merit Employee Relations Board (MERB) was dismissed for lack of jurisdiction because the appeal was not filed within thirty days from the termination of her employment. The EEOC complaints and the MERB appeal were clearly not determined on the merits.
See App. at Tabs D — E.
See App. at Tabs J — L.
See App. at Tabs F — I.
In all of the above referenced lawsuits, the plaintiffs alleged unfair treatment by defendants and claims of retaliatory discharge, unequal pay, breach of the covenant of good faith and fair dealing, breach of contract, and defamation. Joyce Parker's husband, Willie, was also named as a plaintiff under a claim of loss of consortium. Clearly, the gravamen of each complaint filed on plaintiffs' behalf is race discrimination. In the District Court cases, the plaintiffs alleged that the unfair treatment violated 42 U.S.C. § 1983 and Title VII. In the Original Complaint at issue here, the plaintiffs alleged that the same unfair treatment violated state law, but virtually all of the factual allegations are identical to those incorporated into the federal actions.
Plaintiffs' initial attorney withdrew as counsel on March 6, 2002. The docket indicates that some discovery has occurred. The defendants served Answers to Interrogatories in January 2002. In late March 2002, defendants served their interrogatories and a request for production of documents to plaintiffs' initial counsel, but this occurred after plaintiffs' initial counsel had withdrawn her appearance. On November 4, 2002, seven months after plaintiffs' initial counsel withdrew, the Court issued a 41(E) Notice advising the plaintiffs that "[i]f no proceedings are taken within the next thirty (30) days, this action will be dismissed . . . for want of prosecution." In response to this Notice, the plaintiffs wrote to the Court advising the Court that plaintiffs' counsel was suspended from the practice of law and asking the Court not to dismiss the case. Plaintiffs requested additional time to obtain another attorney. In order to demonstrate her extensive search for new counsel, Plaintiff Joyce Parker eventually filed an affidavit which states that she consulted with at least nine other attorneys who reviewed her file and declined representation before she finally retained present counsel.
See Order dated March 6, 2002 (Docket Nos. 17, 18).
See Notice of Service filed January 8, 2002 (Docket No. 12).
See Notice of Service filed March 25, 2002 (Docket Nos. 19 and 20).
Letter dated November 4, 2002 from the Case Manager to the parties (Docket No. 21).
Letter dated November 18, 2002 from J. Parker to the Prothonotary (Docket No. 22).
See Affidavit of Plaintiff Joyce Parker in Support of Plaintiff's Motion for Leave of Court to Amend the Complaint (Docket No. 31) filed on June 20, 2003.
Current plaintiffs' counsel entered their appearance on January 21, 2003. At the time new counsel entered their appearance, they advised the Court that it was their "intention to reformulate the Complaint, abandon all unnecessary or non-meritorious theories and seek to amend the Complaint to present a narrow, race-based claim under 42 U.S.C. § 1981 and 1983 [so the case can] proceed through discovery and to the merits." After spending several months negotiating with the defendants in an attempt to settle plaintiffs' claims, plaintiffs' new counsel filed the instant Motion to Amend the Complaint on May 13, 2003.
Letter dated 1/21/03 from T. Neuberger to Judge Jurden (Docket No. 25).
This Motion seeks to amend the Original Complaint by narrowing the issues to solely address the race discrimination claims, by dismissing Plaintiff Willie Parker as a party, by dismissing Secretary Thomas Eichler as an individual defendant, by suing Diane Gadow and Janet Kramer only as individuals, and by dismissing claims of age or disability discrimination along with a plethora of common law claims. Defendants only oppose the amendment relating to the implementation of a Section 1983 claim. After hearing oral argument, the Court requested supplemental briefing. Briefing is now complete and this matter is ripe for a decision. For the reasons set forth below, Plaintiffs' Motion to Amend the Complaint is GRANTED.
II. DISCUSSION
A. AMENDMENTS UNDER RULE 15(a)Delaware Superior Court Civil Rule 15(a) provides in pertinent part:
Rule 15. AMENDED AND SUPPLEMENTAL PLEADINGS.
(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires . . .
Del. Super. Ct. Civ. R. 15(a) (emphasis added).
Rule 15(a) clearly directs the liberal granting of amendments "when justice so requires." It is well established that leave to amend under Rule 15(a) should be freely given unless there is evidence of undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies, prejudice, futility, or the like.
Hess v. Carmine, 396 A.2d 173, 177 (Del.Super. 1978), citing Foman v. Davis, 371 U.S. 178 (1962).
Delay alone is not a sufficient basis to deny amendment of the pleadings, although inexcusable delay and repeated attempts at amendment may justify denial. "Rule 15(a) affords the parties the right, inter alia, to state additional claims, to increase the amount of damages sought, to establish additional defenses and to change the capacity in which the action was commenced." A motion to amend under Rule 15(a) may also be used to add, substitute or drop parties. (1) Undue Delay
Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993), citing Chrysler Corp. v. New Castle County, 464 A.2d 75 (Del.Super. 1983).
Id., citing Laird v. Buckley, 539 A.2d 1076 (Del. 1988); H H Poultry Co., Inc. v. Whaley, 408 A.2d 289 (Del. 1979).
Id.
Id.
Defendants claim that plaintiffs have been "engaging in all the negative factors" listed above. Defendants correctly note that the plaintiffs sued the defendants three different times in two different courts in three different years. This particular state case was filed in July of 1999, over four years ago. Given the procedural history here, the Court has three major concerns about delay: (1) prior counsel's delay and repeated failure to properly prosecute plaintiff's claims, (2) after prior counsel's Motion to Withdraw her appearance was granted in March 2002, plaintiff Joyce Parker's delay in obtaining new counsel, and (3) once new counsel entered their appearance, the three and a half months of delay before plaintiffs' new counsel filed the instant motion to amend the Original Complaint.
(a) Prior Counsel's Delay and Repeated Failure to Properly Prosecute Plaintiffs' Claims
There is no question that plaintiffs' initial counsel unduly delayed prosecution of this case by her repeated failure to properly serve the defendants and follow court rules and court orders. The question is, should the plaintiffs be penalized for the undue delay caused by their prior attorney?
The Court finds this particular fact situation to be analogous to a motion under Delaware Superior Court Civil Rule 41(b), which provides for involuntary dismissal of an action for a plaintiff's failure to prosecute or comply with court rules.
In determining whether dismissal with prejudice is appropriate under F.R.C.P. 41(b), the Third Circuit had identified a number of factors which must be considered: (1) the degree of plaintiff's personal responsibility for the delay, (2) prejudice to the defendant occasioned by the delay, (3) any history of proceeding in a dilatory manner, and (4) effectiveness of sanctions other than dismissal . . . dismissal should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.
Del. Super. Ct. Civ. R. 41(b) provides, in pertinent part:
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.
This portion of Del. Super. Ct. Civ. R. 41(b) is identical to its equivalent in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 41(b). Therefore, we mention several applicable federal cases in our analysis, at least for a comparison between prior counsel's conduct and the plaintiffs' conduct.
Slepitis v. Officer Hackett, No. 84-3128, 1985 U.S. Dist. LEXIS 19636 at *3 (E.D. Pa., May 22, 1985), citing Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3rd Cir. 1982).
When considering a delay attributable to a failure to prosecute, other federal cases have enunciated a similar analysis which examines three aggravating factors:
(1) delay caused by the plaintiff himself and not his attorney;
(2) actual prejudice to the defendant; or
(3) delay caused by intentional conduct.
See, e.g., Berry v. Cignarsi-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992) (emphasis added); Claitt v. Newcomb, No. 90-1104, 1991 U.S. App. LEXIS 21796 (4th Cir. Sept. 17, 1991); Ford v. Fogarty Van Lines, 780 F.2d 1582 (11th Cir. 1986); Cooper v. Subsea Int'l, Inc., No. 98-1622 Section "N," 1999 U.S. Dist. LEXIS 11461 (D. La. July 26, 1999); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980).
In determining that dismissal of an employment discrimination suit with prejudice was not an appropriate sanction despite the plaintiff's attorney's lack of diligence, the Fifth Circuit reasoned that "a party should not be punished for his attorney's mistake absent a clear record of delay or wilful contempt and a finding that lesser sanctions would not suffice."
Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (citations omitted).
Here, the initial delay in prosecuting appears to be mostly attributable to prior counsel's incompetence and not to the plaintiffs' themselves. As demonstrated below, while the defendants may have suffered some prejudice by this delay, they will not incur any unfair prejudice if this case proceeds on the merits. Additionally, the Court does not find that any delay was caused by intentional conduct. Although there was a significant delay, this Court does not find any improper motive such as bad faith or dilatory tactics. Prior counsel's conduct was not a tactic, it was ignorance of the law. The purpose behind the rule allowing for amendments "is to encourage the disposition of litigation on its merits." Under the circumstances here, justice favors a disposition on the merits as opposed to holding the plaintiffs responsible for the incompetence of their prior counsel.
Grand Ventures, Inc. v. Whaley, 632 A.2d 63, 72 (Del. 1993) (plaintiff was allowed to amend its complaint to state a claim of negligence after the close of evidence, pursuant to Superior Court Rule 15(b)), citing Bellanca Corporation v. Bellanca, 169 A.2d 620, 622 (Del. 1961). Although Grand Ventures and Bellanca only considered the application of Rule 15(b), we find the same rationale of encouraging disposition on the merits to be equally applicable to amendments analyzed under Rule 15(a) and 15(c).
(b) Plaintiff Parker's Delay in Obtaining New Counsel
The Court's second concern regarding delay involves the eleven month period from March 2002, when plaintiffs' prior counsel withdrew, to January 2003, when plaintiffs' new counsel entered their appearance. While a court may not properly deny amendment solely on the ground of delay, where a considerable period of time has passed the "burden is on the party who wishes to amend to provide a satisfactory explanation for the delay." The affidavit provided by plaintiff Joyce Parker sets forth in great detail the extensive search the plaintiffs conducted to locate new counsel after their prior counsel withdrew. The Court is sensitive to the difficulty plaintiffs encountered when they attempted to find the other counsel to prosecute their claims. Given their initial attorney's missteps, attorneys who reviewed the case were probably very reluctant to assume responsibility for such a case. The Court finds it very probable that many of the attorneys simply did not want to invest their time and money into what had become, simply stated, a mess. Given the unfortunate circumstances thrust upon plaintiffs by the conduct and ultimate suspension of their prior counsel, and their good faith extensive efforts to locate new counsel to continue prosecution of their case, the Court finds that leave to amend should not be denied on this factor. In short, this Court finds that Parker's affidavit provides a "satisfactory explanation for the delay."
Cresswell v. Sullivan Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).
See Affidavit of Plaintiff Joyce Parker in Support of Plaintiff's Motion for Leave of Court to Amend the Complaint (Docket No. 31) filed on June 20, 2003.
(c) New Counsel's Delay in Moving to Amend
Current plaintiffs' counsel entered their appearance on January 21, 2003, but did not file a motion to amend the complaint until May 13, 2003. The question is whether new counsel's three and one half month delay in filing the motion to amend was reasonable under the circumstances. "The general rule is that a motion to amend should be made as soon as the necessity for altering the pleading becomes apparent." Plaintiffs claim that the reason for the delay between the entry of their new counsel's appearance and the filing of the motion to amend was current counsel's "unsuccessful efforts to stipulate with the Defendants." Indeed, when they entered their appearance, new counsel wrote a letter to the Court indicating their intention to negotiate a settlement with defendants. Given the extensive procedural history of this case and the multiple complaints filed by prior counsel, it is reasonable that new counsel needed time to review the file and determine what amendments they needed to make to the complaint. The Court finds that the delay in moving to amend was reasonable. In so holding, the Court recognizes that new counsel had much work to do to sort out what happened and how to fix the mistakes made by prior counsel. Moreover, new counsel made a good faith effort during this period to resolve the claims.
Hess, 396 A.2d at 177 (citations omitted).
Pls.' Opening Mem. at 1.
Letter dated 1/21/03 from T. Neuberger to Judge Jurden (Docket No. 25).
The Court does not find any evidence of improper motive on behalf of new counsel and no substantial prejudice to the defendants. The Court appreciates new counsel's efforts to narrow the issues and get this case to trial.
(2) Bad Faith or Dilatory Motive
"[I]n the absence of improper motives such as bad faith or dilatory tactics, delay alone is an insufficient reason to deny leave." As noted above, while the Court is greatly troubled by the actions of plaintiffs' prior counsel and her inability to comply with court rules and Delaware law in prosecuting the plaintiffs' claims against the defendants, her conduct does not constitute bad faith or dilatory motive. Moreover, there is nothing in the record to suggest that prior counsel's activities in connection with this case were directed in any way by the plaintiffs or that they had any motive to delay the case whatsoever. Plaintiffs' counsel did not act in bad faith, she simply was incapable of competently prosecuting a lawsuit. Prior counsel's bungled attempts to secure personal jurisdiction over certain defendants and file suit in the appropriate court does not give rise to a claim of bad faith. Likewise, plaintiffs' extensive search for new counsel and new counsel's attempt to negotiate a settlement before moving to amend both appear to have been conducted in good faith. "Under the circumstances, no clear record of wilful contempt or contumacious conduct" by the plaintiffs has been demonstrated. In short, the Court is unable to discern any bad faith or dilatory motive from the record before it and will not deny leave to amend on this factor.
Chrysler Corp. v. New Castle County, 464 A.2d 75, 84 (Del.Super. 1983), citing Hess, 396 A.2d at 177.
See Hildebrand v. Honeywell, Inc., 622 F.2d 179, 182 (5th Cir. 1980).
(3) Repeated Failure to Cure Deficiencies
The record is abundantly clear that prior plaintiffs' counsel repeatedly failed to cure deficiencies. However, since current counsel entered their appearance, there have not been repeated failures to cure deficiencies. To the contrary, new counsel has followed the rules and is diligently prosecuting plaintiffs' claims. Viewing only current counsel's conduct, this factor weighs heavily in favor of granting a leave to amend. Viewing prior counsel's conduct, the scales tip overwhelmingly against leave to amend. Thus, the Court is in a difficult position. On the one hand, the plaintiffs themselves appeared to have diligently attempted to prosecute this suit. Their only mistake was a poor choice of counsel at the outset. On the other hand, the defendants have lived with this particular lawsuit for over four years and have been forced to defend claims in two different courts under three different suits. There comes a time when enough is enough. At some point, defendants are entitled to know what the claims against them are. It is the Court's responsibility to weigh these considerations. This balancing necessarily leads to the next factor, that of prejudice.
B. PREJUDICE AND AN ANALYSIS UNDER RULE 15(c)
As noted above, Rule 15(a) provides that leave to amend a complaint shall be freely given when justice so requires. Under the facts presented in this case, measuring the amount of prejudice to the non-movant is a crucial factor in determining a fair outcome. The Delaware Supreme Court has stated that in "the absence of prejudice to another party, the trial court is required to exercise its discretion in favor of granting leave to amend. When interpreting the federal equivalent to Delaware Superior Court Civil Rule 15, the Third Circuit has noted that a showing of delay alone is not sufficient because "the touchstone is whether the non-moving party will be prejudiced if the amendment is allowed."
Mullen, 625 A.2d at 263, citing Ikeda v. Molock, 603 A.2d 785 (Del. 1991).
We also note that the Fifth Circuit has ruled that permission to amend should be denied only if it appears to a certainty that plaintiffs cannot state a claim showing they are entitled to relief or defendant will be unduly prejudiced. Griggs v. Hinds Junior College, 563 F.2d 179, 180 (5th Cir. 1977). Here, plaintiffs have clearly stated a claim at this stage of the proceeding, so our analysis remains focused on prejudice.
Del. Super. Ct. Civ. R. 15 is virtually identical to its counterpart in the Federal Rules of Civil Procedure. Mullen, 625 A.2d at 260. Accordingly, throughout this Opinion we mention several federal court decisions that have applied the rule on amendments as persuasive authority.
Howze v. Jones Laughlin Steel, 750 F.2d 1208, 1212 (3rd Cir. 1984).
The defendants argue they will be prejudiced by any amendment that allows the plaintiffs to pursue a claim under 42 U.S.C. § 1983 in state court. They note that the federal complaints in USDC I and USDC II specifically alleged unfair treatment as violations of Section 1983 and Title VII, "while the Superior Court case alleges that the same treatment was in violation of state law." The Court notes, however, that "the same treatment" was alleged in every complaint, and the averments put the defendants on notice of the specific conduct for which they might be liable. As this Court previously hold in Hess v. Carmine, "leave to amend has been denied where the moving party knew of the facts on which the proposed amendment was based, but omitted the necessary allegations from the original pleading." But here, the factual basis of the complaint has been consistent throughout this litigation, such that the Original Complaint did not omit the necessary allegations.
Defs.' Eichler, Gadow, and the State of Delaware's Mem. in Support of their Mot. in Opposition to Pls.' Mot. to Amend the Compl. ("Defs.' Opposition") (July 11, 2003) at 2-3.
Hess, 396 A.2d at 177 (citations omitted).
In opposing the motion to amend, the defendants' brief lists a variety of assertions as favoring denial of leave to amend in the interests of justice. For example, the defendant argue:
Had plaintiffs decided to sue defendants under 42 U.S.C. § 1983 in 1999 in state court, Defendants may have chosen separate counsel because of the possibility of individual liability. They may have chosen to seek individual counsel because of the differing defenses existing under federal law and state law. They may have chosen to propound different discovery. They may have chosen a different defense. They might have thought differently about the potential seriousness of the claim because of the possibility of a attorney-fee award against them under 42 U.S.C. § 1988.
Defs.' Opposition at 3.
The defendants also argue that leave to amend should be denied under Rule 15(c). Specifically, they claim that the Amended Complaint violates Rule 15(c) and case law by improperly adding a new cause of action and new parties after the statute of limitations has run.
Defs.' Opposition at 3-5.
As this Court has previously observed, under Rule 15(a) justice may not require that leave to amend be freely given if the party seeking to amend has been inexcusably careless, or if the amendment would unfairly prejudice an opposing party. Prejudice, the latter element, is to be tested by the terms of Rule 15(c), and leave to amend which would otherwise be freely given will be given with relation back consequences if the requirements of Rule 15(c) are met.
Hess, 396 A.2d at 176 (Del.Super. 1978), citing Annone v. Kawasaki Motor Corp., 316 A.2d 209 (Del. 1974).
Id.
Delaware Superior Court Civil Rule 15(c) provides:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Del. Super. Ct. Civ. R. 15(c).
The effect of the relation back segment of Rule 15 is to "enlarge" the statute of limitations period. "Since its inception, Rule 15(c) has allowed relation back of a claim or defense that `arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'" The record is quite clear that the race discrimination claims in the proposed Amended Complaint arose out of the same conduct, transaction or occurrence that was depicted in plaintiffs' Original Complaint, which in turn reiterated the same allegations from the first federal complaint in USDC I. Every complaint refers to Joyce Parker's termination of July 1996, and each one avers employment discrimination motivated by a scheme of racial prejudice. Besides the delay issue, the main points of contention in this dispute are whether the Amended Complaint attempts to introduce a new cause of action or any new parties after the statute of limitations has expired.
Mergenthaler, Inc. v. Jefferson, 332 A.2d 396, 398 (Del. 1975).
The Superior Court Civil Rules, including Rule 15, were adopted in 1948. Until 1967, the relation back of all amendments, including those changing parties, was governed solely through the "arising out of the same conduct transaction, or occurrence" test. In 1967, rule 15(c) was amended, adding the additional notice requirements listed above. Mullen, 625 A.2d at 264, n. 4.
Mullen, 625 A.2d at 264, citing 6 Moore's Federal Practice P 15.15[3.-3].
Recall that USDC I was filed within the two year statute of limitations. We also note that the defendants characterized State I as being an "identical action" to USDC I when they asked for State I to be removed to federal court, and the District Court agreed. See Pls.' Opening Mem. at Tab L and Tab I.
(1) Adding a Cause of Action
(a) Plaintiffs' Failure to Cite Section 1983 in the Original Complaint Does Not Mean the Claim Cannot Be Pursued Now
Defendants argue that while the federal cases identified 42 U.S.C. § 1983 as a basis for liability, the complaint in this case does not.
No general principle of law has been better settled than that an amendment setting up a new cause of action will not relate back to the date of the original pleading, but will be governed by its own date, and an amendment will not be allowed if it introduces a new cause of action which as an independent proceeding would be barred by a statute of limitations. It is equally true, on the other hand, that if the amendment merely expands or amplifies what was alleged in the support of the cause of action already asserted, it relates back to the commencement of the action, and is not affected by the intervening lapse of time.
Defs.' Opposition at 3.
Mullen, 625 A.2d at 264, citing 6 Cyclopedia of Federal Procedure § 18.47.
In arguing that a new cause of action under Section 1983 has been introduced in the Amended Complaint, the defendants seek to invoke the above rule and prevent such liability from attaching after the statute of limitation has run.
The fact that the Original Complaint in this state action did not explicitly cite Section 1983 is of minor consequence, based upon language in Davis v. City of Philadelphia, a case cited by defendants for a different purpose. In Davis, the Commonwealth Court of Pennsylvania outlined the threshold of what a plaintiff must allege in order to maintain a "Section 1983" cause of action:
Davis v. City of Philadelphia, 650 A.2d 1127 (Pa.Commw. 1994).
Although we have previously decided that just because a plaintiff has not specifically set forth the statute by stating a "Section 1983" cause of action does not mean the claim cannot be pursued; to maintain such an action, a plaintiff is required to allege first that a person or persons deprived him of some cognizable federal right, privilege or immunity, and second, that the person or persons deprived him of that right while acting under the color of state law.
Davis, 650 A.2d at 1130 (emphasis added), citing Heinly v. Commonwealth, 621 A.2d 1212 (Pa.Commw. 1993); see also Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Uram v. County of Allegheny, 567 A.2d 753 (Pa.Commw. 1989).
A thorough review of the Original Complaint clearly demonstrates that Plaintiff alleged a deprivation of a federal right or privilege: race-based employment discrimination by the defendants. That Original Complaint indicates that the defendants were being sued individually and as agents of the State of Delaware, such that their alleged custom or usage of discrimination in the government workplace could be said to have been committed under color of state law. Section 1983 states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, . . ."
Delaware is a notice pleading jurisdiction and the complaint need only give general notice as to the nature of the claim asserted against the defendants. Although the Original Complaint does not specifically utilize the Section 1983 catch phrase of a government "regulation, custom or usage," under notice pleading standards and the Section 1983 threshold enunciated in Davis a fair reading of this complaint put the defendants on notice that they were being sued for the alleged usage or custom of deliberate race discrimination as administered by the state and by agents of the state.
Nye v. Univ. of Del., No. 02C-12-065-JRJ, 2003 Del. Super. LEXIS 325 at *9 (Del.Super. Sept. 17, 2003), citing Cornish v. Del. State Police, No. 94C-12-019, 1995 Del. Super. LEXIS 240 (Del.Super. June 2, 1995).
"[T]he touchstone of the Section 1983 action against a governmental body is an allegation that an official policy, custom or usage is responsible for a deprivation of rights protected by the Constitution." Davis, 650 A.2d at 1130, citing Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978).
For example, the Original Complaint avers:
"Parker experienced harassment, discrimination and hostility because of her race, sex and disability, including the following: (a) Parker was treated in a hostile and negative manner by Defendants; (b) Defendants had an attitude toward black employees that shows they disliked black people; (c) Defendants treated black female employees different than whites in matters involving terms and conditions of employment . . ." Original Complaint at ¶ 12.
"Defendants retaliated against Plaintiff . . . by creating . . . a more intense hostile and oppressive work environment and by terminating her employment." Id. at ¶ 14
"The above stated lower rate of pay Plaintiff received for work similarly performed by the above-described Caucasian nurses hired by Defendant constitutes discrimination." Id. ¶ 19.
"The above-stated lower rate of pay Plaintiff received was because of her race and sex." Id. At ¶ 20.
"Defendants were acting individually and/or as agents of the State, within the scope of employment at the time of the above-mentioned acts, and these actions were ratified by Defendant State." Id. At ¶ 40.See also Count II, claim for Breach of Implied Covenant of Good Faith and Fair Dealing, Original Complaint ¶¶ 24-30.
Moreover, the earlier filed federal actions encompass the same set of facts and specifically cite Section 1983 as a foundation for the lawsuits. In their brief, the defendants concede that the federal actions were described as 42 U.S.C. § 1983 claims. Therefore, this Court is unpersuaded by defendants' assertions that they are now prejudiced because they were unaware that Section 1983 liability might attach, especially in light of Davis. Rule 15 "is written upon the assumption that pleadings are not an end in themselves but are designed to assist, not deter, the disposition of litigation on its merits . . . A trial judge in his discretion must always permit or deny the amendment by weighing the desirability of ending the litigation on its merits against possible prejudice or surprise to the other side." Although not specifically cited in the original complaint, conduct proscribed by Section 1983 has been the focal point of this litigation since the first suit was initiated in 1998. As for prejudice, this Court is convinced that the desirability of ending this litigation on the merits outweighs any prejudice the delay may have caused the defendants.
Defs.' Eichler, Gadow, and the State of Delaware's Mem. in Support of their Mot. in Opposition to Pls.' Mot. to Amend the Compl. at 3 (July 11, 2003).
Bellanca Corporation v. Bellanca, 169 A.2d 620, 622 (Del. 1961), citing 3 Moore's Federal Practice, 804, 843; see also, PNC Bank v. Turner, 659 A.2d 222, 225 (Del.Super. 1995).
Defendant's cite Davis v. City of Philadelphia in support of their assertion that Section 1983 claims encompass a different legal theory than negligence claims even though both may arise out of the same transaction or occurrence. Davis may provide some persuasive authority for the defendants on this point, but it also provides authority for plaintiffs' contention that a complaint does not specifically have to cite Section 1983 in order to state a cause of action based on that statute. Moreover, the denial of leave to amend in Davis is distinguishable because Mr. Davis admitted "that he had voluntarily discontinued his federal court action under Section 1983." In the case at bar, both of plaintiffs' federal actions were dismissed by the Court for prior counsel's failure to adhere to procedural rules. Joyce Parker has never voluntarily relinquished her pursuit of any claims, and the underlying factual allegations have been consistent throughout. In denying leave to amend and declaring that a Section 1983 claim is a new cause of action separate from a negligence theory, the Davis court specifically reasoned that a Section 1983 claim "proposes a different legal theory and requires additional facts to support it . . ." But the essential facts alleged in the plaintiffs' numerous complaints have consistently depicted a scenario of deliberate race discrimination by state agents acting in their official capacities such that additional facts are not required to support a Section 1983 claim at this stage.
650 A.2d 1127 (Pa.Commw. 1994).
Davis, 650 A.2d at 1128.
Id. at 1131.
(b) Plaintiffs' Consistent Factual Allegations Have Sufficiently Notified the Defendants of Plaintiffs' Claims
"The cause of action concept embodied in Rule 15(c) has been broadly defined to require simply that there be fair notice of the general fact situation out of which the claim or defense arose." The "mere fact that the amendment changes the legal theory on which the action was originally brought is of no consequence if the factual situation upon which the action depends remains the same." Since the facts alleged in plaintiffs' Original Complaint were sufficient to notify the defendants of the theory of the claims and the grounds which support them, leave to amend to specifically allege a cause of action under Section 1983 should be granted.
Mullen, 625 A.2d at 264, citing Di Fonzo v. Robelen Piano Co., 144 A.2d 247 (Del.Super. 1958). Although Di Fonzo was decided before the additional notice provisions were added in 1967, the Delaware Supreme Court in Mullen utilized the language quoted above in 1993. The Di Fonzo court also provides some relevant commentary taken from Moore's Federal Practice:
If the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim. While it is still the rule that an amendment which states an entirely new claim for relief will not relate back, the Federal Rules have broadened the meaning of the concept of `cause of action', shifting the emphasis from a theory of law as to the cause of action, to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim.Di Fonzo, 144 A.2d at 248, citing 3 Moore's Federal Practice pp. 851-853.
Mullen, 625 A.2d at 264, citing Vadala v. Henkels McCoy, Inc., 397 A.2d 1381 (Del.Super. 1979).
Defendants also argue that the plaintiffs should not be allowed to choose a new theory just because they have a new lawyer. But as this Court's analysis has demonstrated, Section 1983 liability is not truly a new theory. Moreover, although the defendants assert that the plaintiffs "should not be allowed to choose in state court the same theory already chosen and litigated in federal court," it is important to note that all of the federal actions were disposed of on procedural grounds due to prior counsel's incompetence or lack of diligence, not on the merits. (2) Adding a Party Under Rule 15(c)
Defs.' Opposition at 5.
Id.
See Pls. Opening Mem. at Tabs D, E, H and I.
(a) Defendants' Arguments and the Requirements of 15(c)
The defendants assert that the plaintiffs' attempt to add the defendants as individual defendants under 42 U.S.C. § 1983 makes them new parties and therefore the amendments should be denied under Rule 15(c). While the defendants have presented at least a colorable argument that a new cause of action is being introduced, defendant's assertion that any new parties have been added is not convincing because the individual defendants in this case have always been sued in their individual capacities and as agents for the state.
Defs.' Opposition at 4.
The general rules governing the addition of a party and relation back to the original pleading are found in Rule 15(c). The scope of the amendment rule includes the substitution or addition of a party to a pleading, even after the statute of limitations has expired, as long as the requirements of Rule 15(c) are met. If the requirements of Rule 15(c) are satisfied, then relation back to the original date of the pleading is permitted. In order for an amendment adding or substituting a party after the running of the statute of limitations to relate back to the filing date of the action, three conditions must be satisfied:
Preston v. Bd. of Adjustment, 772 A.2d 787, 790 (Del. 2001), citing Mullen, 625 A.2d at 263.
(1) the claim or defense asserted in the amended pleading must arise out of the same conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading;
(2) within the period provided by law for commencing the action against the party (i.e., the statute of limitations), the party to be brought in by the amendment must have received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits; and
(3) within the period provided by law for commencing the action against the party, the party to be brought in by the amendment must have known or should have known that but for a mistake concerning the identity of the party the suit would have been brought against the party.
Mullen, 625 A.2d at 263, accord Preston, 772 A.2d at 790.
All of the requirements set forth in Rule 15(c)(3) must be satisfied in order for an amendment substituting a party after the running of the statute of limitations to relate back to the filing date of the action. Unlike subsection (a) of Rule 15, subsection (c)(3) involves no discretion by the Court.
Taylor v. Champion, 693 A.2d 1072, 1074 (Del. 1997), citing Mullen 625 A.2d at 265.
Taylor, citing Parker v. Breckin, 620 A.2d 229, 232 (Del. 1993).
The first requirement is satisfied because the record is clear that every complaint has addressed the same transaction or occurrence: Joyce Parker's termination from employment and the surrounding circumstances at the Ferris School. With respect to the second requirement the Delaware Supreme Court has commented specifically on what constitutes notice of the institution of the action:
It seems clear to us that the Rule requirements are directed to both time and content; thus as to "time," notice must be given within the period provided by law for commencing the action — and that can only mean the limitations period; as to "content," the notice must be given of the "institution of the action," and that can only mean the lawsuit, not merely of a claim or allegation. While 15(c) affords no room for construction as to either the meaning of "institution of the action" or application of the time requirement, the spirit of the Rules permits liberality of construction as to the type or quality of the notice. The Rule is silent on that point. The Rules Advisory Committee Notes state that such notice ". . . need not be formal," we agree. And certain it is that notice by service of process is not mandated, and it may not even have to be in writing.
Mullen, 625 A.2d at 264-265, quoting Mergenthaler, Inc., 332 A.2d 396, 398 (Del. 1975).
Accordingly, the Court must determine if any new parties are added by the amended complaint, and if so, then that new party must have been at least informally notified of the lawsuit within the statute of limitations.
(b) Individual Liability Is Not a New Concept in this Litigation
The defendant's claim prejudice in that had they been sued under Section 1983 in state court they may have chosen separate counsel because of the possibility of individual liability. This assertion falls flat considering that every complaint filed by the plaintiffs in either state or federal court has clearly sued each person in their individual capacity in addition to being named as agents of the state and the individuals never chose separate counsel.
Defs.' Opposition at 3.
See Original Complaint, Pls. Opening Mem. at Tab K; First Amended Complaint, Pls.' Opening Mem. at Tab C; first federal complaint in USDC I, App. at Tab M; second federal complaint in USDC II, App. at Tab Q.
The defendants rely on the Ninth Circuit case of Eaglesmith v. Ward in support of their argument that the proposed amendments improperly add individual liability under Section 1983. But Eaglesmith is clearly distinguishable because the Ninth Circuit specifically noted that its holding in that case was based on a stipulation that the school superintendent was originally named as a defendant "in his official capacity" only. Defendants also point out that in upholding a decision which denied leave to amend, the United States Court of Appeals for the District of Columbia in Atchinson v. District of Columbia considered the problems with naming a defendant in his individual capacity after the statute of limitations had run. However, the Atchinson decision is also distinguishable from the present case because here the Original Complaint clearly named Defendants Eichler, Kramer, and Gadow in their individual capacity and as agents of the state. The complaint in Atchinson, on the other hand, "specifically stated that Atchinson was suing the defendant officials in their official capacities only."
73 F.3d 857 (9th Cir. 1996).
Id. at 859.
Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996).
See Pls.' Original Complaint at 1 (caption), and ¶¶ 4, 5, and 6.
Atchinson, 73 F.3d at 425.
Moreover, the United States Supreme Court "has noted that when a complaint fails to specify the capacity in which a government official is sued, the `course of proceedings' will usually indicate the sort of liability the plaintiff seeks to impose." Here, not only has the Original Complaint named each personal defendant in their individual capacity, but the "course of the proceedings" of this case clearly indicate that the plaintiffs seek both individual and governmental liability for race discrimination. There has been no showing that the defendants will be prejudiced in defending on the merits, and in fact Gadow and Kramer have participated in the joint defense of this action from the outset, despite being originally sued as individuals and as agents of the state.
Id., citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985).
(c) No New Parties Have Truly Been Added in the Amended Complaint
If new parties were introduced in the Amended Complaint, this pleading would not relate back to the date of the original filing unless Parker's amendments completely comported with the dictates of Rule 15(c). But is a new party truly being added in the Amended Complaint? The captions in the Original Complaint and in the first federal complaint name the state of Delaware as a party along with Secretary Thomas Eichler in his individually capacity and as an agent for the State of Delaware. Furthermore, when specifically naming the defendants, the Original Complaint states "Defendant, Secretary Thomas Eicler [sic], at all times herein mentioned, was acting in his individual capacity, [and] as an agent for the State of Delaware as Secretary for the Department of Social Services." The first federal complaint, which was filed within the statute of limitations in July 1998, also identifies the same parties and includes Defendant Eichler "as an agent for the State of Delaware as Secretary for the Department of Social Services."
Pls.' Original Complaint at ¶ 4.
See first federal complaint, App. at Tab M; Pls.' Opening Mem. at Tab J, ¶ 10.
In considering the defendants' assertion that a new party has been added after the statute of limitations, the Court notes that the only material difference between the Original Complaint and the plaintiffs' Amended Complaint is that the amendment lists "The Department of Health and Social Services of the State of Delaware" as opposed to Thomas Eichler "as agent for the State of Delaware as Secretary for the Department of Social Services." This change does not truly constitute an addition of a new party. "A motion to amend for the purpose of adding or substituting a party often occurs in the case of misnomer or where there is an identity of interest between an existing party and the party to be added." Even if this Court were to find that a new party was added under these circumstances, Rule 15(c) appears to have been satisfied in that there is enough "identity of interest" between the Secretary of the Department being sued as a state agent and the Department itself to warrant the amendment with relation back consequences.
The only other differences involve actual reductions in the capacity in which certain defendants are being sued. For example, in the Amended Complaint Gadow and Kramer now being sued only as individuals, Eichler has been dropped as an individual defendant, and Willie Parker's is no longer a plaintiff.
Mullen, 625 A.2d at 263, citing Stroik v. Wanamaker, 315 A.2d 606 (Del.Super. 1974).
See Id.
Furthermore, unlike the scenario in Merganthaler, Inc. v. Jefferson, where the litigant "waited until the statute of limitations was about to expire and then sued the wrong party," here plaintiff Parker did not sue the wrong party. The Original Complaint clearly identifies the State as a defendant, along with Kramer, Gadow and Eichler as being sued individually and as state agents. The Amended Complaint, instead of adding parties, actually reduces the number of participants and narrows the scope of this lawsuit.
Mergenthaler, 332 A.2d 396, 399.
(d) Attorneys' Fees and Punitive Damages
Defendants point out that they may have thought differently about the potential seriousness of the claim because of the possibility of an attorney-fee award against them under 42 U.S.C. § 1988. But the Original Complaint specifically cites Section 1988 in its prayer for relief, and it specifically asks for attorneys' fees as an award for punitive damages for defendants' alleged willful and malicious conduct. Accordingly, the possibilities of an award of legal fees or punitive damages are also not new to this litigation. In addition, the defendants cite the unreported opinion of Hunt v. Brandywine Nursing and Rehab. Center, Inc. in support of their argument that plaintiffs should not be allowed to seek punitive damages at such a late date. Again, defendant's argument on this point is without merit because the Original Complaint clearly asks for punitive damages.
Pls.' Original Complaint at 13, ¶ 9.
Id. at 11 and 13, ¶¶ 11-13.
No. C.A. 00C-01-050 FSS, 2000 WL 1211588 (Del.Super. August 18, 2000), attached to Defs.' Opposition as Ex. 1.
The federal complaints also ask for attorneys' fees and punitive damages.
(e) Plaintiffs Have Not Been Guilty of Inexcusable Neglect
The findings of adequate notice and lack of prejudice do not end the inquiry, however, for the Court must determine if plaintiffs have been "inexcusably careless" in failing to file a timely motion to amend. Although allegations of inexcusable neglect continue to be proper considerations under Rule 15(c), the issue is more closely related to the exercise of discretion under Rule 15(a). Similarly, to the extent issues of dilatory conduct on the part of the movant arise, they are to be resolved under the terms of Rule 15(a), not Rule 15(c). This Court finds that the plaintiffs have not acted in bad faith or with dilatory motive, nor have they been guilty of such conscious disregard which, in the absence of any true prejudice to the defendants, can be termed "inexcusable neglect." Accordingly, leave to amend shall not be denied on this ground.
Hess, 396 at 176-177.
Id.
Mullen, 625 A.2d at 265.
C. FEDERAL PRECEDENT
Superior Court Rule 15 is virtually identical to its counterpart in the Federal Rules of Civil Procedure. Accordingly, this Court has conducted a thorough review of some federal precedent as persuasive authority. In granting leave to amend in this case, the Court has based its decision on the reality that the Amended Complaint does not allege any material new facts, nor does it create the need for any additional discovery beyond what is already encompassed by the Original Complaint. Such a consideration is important in light of the decision in Atchinson:
Id. at 260.
For example, we have previously given weight to whether amendment of a complaint would require additional discovery. See, e.g., Alley v. Resolution Trust Corp., 984 F.2d 1201, 1208 (D.C. Cir. 1993) (remanding for district court to allow amendment where plaintiffs assured the court of appeals that there would be no need for additional discovery or allegation of new facts); Williamsburg Wax Museum, 810 F.2d at 247-48 (affirming a district court's denial of leave to amend, over seven years after the filing of the initial complaint, where new discovery would be necessary); see also State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (reversing a district court's denial of leave to amend where the new claim was closely related and there would be no need for "a great deal of additional discovery").Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996).
Where it appears that a plaintiff's purpose in seeking amendment and asserting a new claim is his or her anticipation of an adverse ruling on the original claims, leave to amend should be denied. Likewise, when substitute counsel discovers new information which forms the basis of the proposed amendments, leave to amend has been denied. Neither of those situations apply here. Although plaintiffs have hired new counsel, the amended complaint is based on the same facts alleged in the Original Complaint and not on any new information. The same basic claims of race discrimination have been averred in every action filed by the plaintiffs, so one cannot properly infer that the amendments are sought in anticipation of an adverse ruling on the original claims. In fact, the proposed amendments narrow the scope of this lawsuit to the central issue of race discrimination as opposed to an attempt to expand the theory of liability or augment the number of parties. As stated above, the facts supporting the Section 1983 theory of recovery have been present and static throughout.
See Reisner v. General Motors Corp., 511 F. Supp. 1167, 1172 (S.D.N.Y. 1981), aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858 (1982).
See Ansam Associates Inc. v. Cola Petroleum Ltd., 760 F.2d 442 (2d Cir. 1985).
IV. CONCLUSION
The purpose behind the rule allowing for amendments "is to encourage the disposition of litigation on its merits." As discussed above, although the amount of delay in this case is troublesome, plaintiffs have provided a satisfactory explanation for the delay such that allowing the amendment and proceeding to a disposition on the merits will promote justice. This Court also finds that the defendants will not be unduly prejudiced if the amendment is allowed. Therefore, it is the Court's decision in the interest of justice that leave to amend the complaint should be granted, with the amendment relating back to the date of original filing.
See footnote 30, supra.
Accordingly, Plaintiffs' Motion to Amend the Complaint is GRANTED.