Opinion
No. 2:00-CV-953K
April 16, 2004
ORDER
This matter is before the court on Defendant Richard A. Hadlock's Motion for Leave to Amend Answer and Assert a Counterclaim and Cross Claim. Rule 15 of the Federal Rules of Civil Procedure, which governs the amendment of pleadings, provides that a party must obtain leave of court to amend its Complaint after an Answer has been filed and that "leave shall be freely given when justice so requires." In assessing whether leave to amend is proper, courts consider the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Frank v. US West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Whether to grant leave to amend a complaint "is within the discretion of the trial court" and will not be disturbed absent a showing that the trial court has abused its discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32 (1971).
In this case, Hadlock seeks to assert a counterclaim against the United States and a cross claim against Defendant Kenneth T. Adams for foreclosure and amounts owing Hadlock by Adams. An Amended Judgment was entered on July 22, 2002, permitting the United States to foreclose its statutory liens against the subject properties. On October 16, 2003, the court entered an amended order of foreclosure and sale after the parties' settlement discussions fell through. This case was closed on December 12, 2003.
Although the court is troubled by the delays in the foreclosure proceedings by the United States, an amendment of the pleadings to assert new counterclaims and cross claims is not the correct procedural mechanism. Such an amendment is clearly untimely and prejudicial without some other alteration to the judgment already in place. See Diersen v. Chicago Car Exchange, 110 F.3d 481, 488 n. 6 (7th Cir.) Cert denied, 522 U.S. 868 (1997); Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001) (finding untimeliness alone is sufficient reason to deny leave to amend). Accordingly, Hadlock's motion to amend pursuant to Rules 13(e), 13(g) and 15(a) of the Federal Rules of Civil Procedure is DENIED.