Opinion
Jay L. Breakstone, Parker Waichman LLP, Port Washington, NY, Jay P. Dinan, Parker Waichman, LLP, Bonita Springs, FL, Manuel A. Pietrantoni, Marini Pietrantoni Muniz LLC, Richard Schell-Asad, Schell Law Office, San Juan, PR, for Plaintiff
Guillermo J. Ramos-Luina, San Juan, PR, Eric M. Quetglas-Jordan, Quetglas Law Office PSC, Guaynabo, PR, for Defendants.
MEMORANDUM AND ORDER
FRANCISCO A. BESOSA, UNITED STATES DISTRICT JUDGE
Before the Court is co-defendant Eric Quetglas-Jordan ("Quetglas")’s motion requesting leave to file a second amended crossclaim pursuant to Federal Rule of Civil Procedure 15 ("Rule 15"). (Docket No. 247.) Defendants John F. Nevares and Associates, P.S.C.’s ("Nevares"), and Salas & Company, L.C.’s ("Salas") (collectively, "defendants") oppose Quetglas’ motion. (Docket No. 260.) For the reasons set forth below, the Court GRANTS Quetglas’ motion to file a second amended crossclaim. (Docket No. 247.)
I. Background
On April 24, 2017, Quetglas asserted a crossclaim against the defendants. (Docket No. 124.) The defendants answered the crossclaim in May 2017. (Docket No. 127.) Ten months later, Quetglas filed a motion requesting to amend the crossclaim. (Docket No. 188.) The Court granted Quetglas’ motion, Parker Waichman LLP v. Salas LC, 320 F.Supp.3d 327, 337-38 (D.P.R. 2018) (Besosa, J.), and Quetglas filed the amended crossclaim on May 29, 2018. (Docket No. 228.) The defendants answered the amended crossclaim on June 18, 2018. (Docket No. 231.)
On November 13, 2018, Quetglas filed a motion requesting leave to file a second amended crossclaim "to the sole effect of [adding to] the relief requested." (Docket No. 247 at p. 2.) According to Quetglas, "it was not until November 1, 2018, that Nevares and Salas produced to Quetglas sample copies of the Retainer Agreement Letters that Nevares used with all the clients that retained him in the CAPECO litigation." (Docket No. 262 at p. 2.) Quetglas argues that "[a]fter the conclusion of discovery, it is now evident that Quetglas was not responsible for the fault that led the Court to nullify the Attorney’s Agreement," and "that because he was not at fault, pursuant to [Article 1258 of the Puerto Rico Civil Code ("Article 1258") ], he is entitled to collect against the cross defendants an equal share of the fees received by them." (Docket No. 247 at pp. 2-3.) Quetglas’ proposed second amended crossclaim "solely contains a new request for relief" and "raises no new factual issues that could somehow cause any undue delay to the scheduled proceedings." Id. at p. 3; see also Docket No. 247, Ex. 1 at pp. 8-9. According to Quetglas, "[t]he added legal theory only deals with the relief that, as a matter of law, Quetglas is entitled to because only Nevares was at fault for the nullity." (Docket No. 262 at p. 3.)
II. Legal Standard
"A motion to amend a complaint will be treated differently depending on its timing and the context in which it is filed." Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12 (1st Cir. 2004). After the filing of a responsive pleading by the defendant, "the permission of the court or the consent of the opposing party is required." Id. at 12 (citing Fed.R.Civ.P. 15(a)). "The Court should freely give leave as justice so requires." Fed.R.Civ.P. 15(a)(2). "As a case progresses, and the issues are joined, the burden on a plaintiff seeking to amend a complaint becomes more exacting." Steir, 383 F.3d at 12. "Scheduling orders, for example, typically establish a cut-off date for amendments." Id. "Once a scheduling order is in place, the liberal default rule is replaced by the more demanding ‘good cause’ standard of Fed.R.Civ.P. 16(b)." Id. (citing O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-55 (1st Cir. 2004)). Federal Rule of Civil Procedure 16 ("Rule 16")’s "good cause" standard focuses on the diligence of the movant more than the prejudice to the party-opponent. Id. (citing O’Connell, 357 F.3d at 154-55). "Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show ‘substantial and convincing evidence’ to justify a belated attempt to amend a complaint." Id. (quoting Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994)).
III. Discussion
Quetglas presents "substantial and convincing evidence" that justifies a belated request to amend his crossclaim. See Steir, 383 F.3d at 12. Quetglas explains that his request to amend is belated because the completion of discovery revealed new evidence regarding the defendants’ retainer agreement letters. (Docket No. 262 at p. 2.) He contends that "it was not until November 1, 2018" that the defendants produced all of their clients’ retainer agreements. Id. Quetglas requested to amend his crossclaim twelve days later. See Docket No. 247. Quetglas’ reasoning demonstrates "good cause" for the delay and does not controvert Quetglas’ diligence. See Steir, 383 F.3d at 12. Although the defendants argue that they produced a retainer agreement template and three retention agreements "so that [Quetglas] may ascertain that they are in fact the same as the template" in February 2017, the defendants did not provide Quetglas access to all of the retainer agreements until November 2018. (Docket No. 297 at p. 1.) Quetglas’ first opportunity to review each retainer agreement occurred on November 1, 2018, and Quetglas demonstrated diligence in his prompt request to amend his crossclaim on November 13, 2018. See Docket Nos. 247 and 262.
Quetglas requests to amend his crossclaim in order to seek additional relief pursuant to Article 1258. (Docket No. 247 at p. 2.) The proposed second amended crossclaim is identical to the first amended crossclaim, with the exception of the Article 1258 claim for relief. Compare Docket No. 228 with Docket No. 247, Ex. 1. The requested amendment "arises out of the transaction or occurrence that is the subject matter" of this action and "relates to [the] property that is the subject matter" of this case. See Fed.R.Civ.P. 13(g). Because Quetglas demonstrates "good cause" for his delay and provides "substantial and convincing evidence" to justify his belated request, the Court GRANTS Quetglas’ motion requesting leave to file the second amended crossclaim. (Docket No. 247.)
IV. Conclusion
For the reasons stated above, Quetglas’ motion to file his second amended crossclaim is GRANTED. (Docket No. 247.) Quetglas may file the second amended crossclaim no later than July 31, 2019. Pursuant to Rule 15(a)(3), the defendants may file their answer no later than 14 days after the second amended cross claim is filed.
IT IS SO ORDERED.