United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick United States District Judge
matter comes before me on Pandora Distribution, LLC's
motion for leave to amend the complaint (Doc. No. 179), First
American Title Insurance Company's opposition (Doc. No.
180), Philips Electronics North America Corporation's
limited response (Doc. No. 182), Pandora's reply (Doc.
No. 185), and Ottawa OH, LLC's limited response (Doc. No.
186). Also before me is First American's motion for
provides a party may amend its pleadings once as a matter of
course within 21 days of serving the pleading or, if a
responsive pleading is required, 21 days after service of a
responsive pleading. Fed. R. Civ. Pro. 15(a)(1). “In
all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. Pro. 15(a)(2).
the absence of any apparent or declared reason - such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. - the leave sought should, as the rules require, be
‘freely given.'” Foman v. Davis, 371
U.S. 178, 182 (1962); see also Head v. Jellico Hous.
Auth., 870 F.2d 1117, 1123 (6th Cir. 1989).
“Notice and substantial prejudice to the opposing party
are critical factors in determining whether an amendment
should be granted.” Hageman v. Signal L. P. Gas,
Inc., 486 F.2d 479, 484 (6th Cir. 1973). See also
Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425
(6th Cir. 1999) (leave to amend should be granted
freely as cases should be tried on their merits rather than
technicalities of pleadings).
case involves two large material conveyors which run between
two neighboring warehouses in Ottawa, Ohio. Plaintiff Pandora
owns one warehouse and Ottawa owns the other adjacent
warehouse. The two conveyors run between the respective
warehouses over railroad tracks.
parties believed both conveyors were built at the same time
and were the subject of a 1986 “License General
Form” in which the railroad granted the predecessor
owner of the properties, Philips Electronics, permission to
traverse its air rights. In July 2015, Philips produced a
document entitled “Easement, ” in a supplemental
document production which revealed an error in that
Easement clarified that one conveyor was built in 1970 making
the other conveyor subsequently built in 1986 subject to the
“License General Form.” The License General Form
allowed the railroad to demand removal of the conveyors from
Philips. Pandora obtained an assignment from the railroad in
November 2014, via a document entitled Settlement and
Assignment Agreement. It was assumed that the Settlement and
Assignment Agreement related to the 1986 agreement and
included both conveyors.
then discovered the conveyors were governed by different
documents. It reached out to the railroad to discuss
amendment of the Settlement and Assignment Agreement to
correct the underlying basis of their agreement. To that end,
in October 2015, Pandora and the railroad executed an Amended
Settlement and Assignment Agreement. The Amended Agreement
allows for Pandora to utilize the tear down rights the
railroad obtained in both the License General Form and
seeks a fourth amendment to the complaint to clarify the
record that its cause of action against Philips is based upon
the correct agreement, the Amended Settlement and Assignment
Agreement. Counsel for Pandora contacted counsel to this
litigation in November 2015 to explain the issue and request
consent to the amendment.
American objects to this proposed fourth amended complaint
because it comes outside the Court's deadline for
amending the pleadings and question's Pandora's
diligence in notifying the parties as to the basis for
another amended complaint. First American also argues it will
suffer prejudice despite “dispositive motion briefing
and expert discovery having been stayed and the trail has
been held in abeyance, fact discovery is closed and First
American's motion for summary judgment remains
pending.” (Doc. No. 180, p. 3). First American's
concern is that this “amended complaint will invite
additional pleadings and require additional discovery,
delaying the proceedings even further.” (Id.)
does not oppose the motion for leave but does object to what
it terms as incorrect factual and legal characterizations set
forth in Pandora's motion. Philips will address those
matters in its dispositive motion.
reply, Pandora does not seek to delay the litigation but to
accurately frame the issues. Pandora also notes the
litigation was effectively stayed in October 2015 to address
a discovery dispute between First American and Ottawa. When