The opinion of the court was delivered by: STANLEY CHESLER, District Judge
This matter comes before the Court upon Motion of Robert I.
Lesser, Esq., attorney for Ivan Samuels, (Docket Item #31)
seeking leave to: (1) file an Amended Complaint against Bounty
Alarms, LLC as a defendant; (2) amend the Arbitration Award and
Judgment to reflect the liability of Bounty Alarms, LLC; and (3)
have the proceeds of bank accounts in the name of Bounty Alarms,
LLC turned over to Plaintiff.
On or about April 6, 2005, a non-binding arbitration award was
determined, and a subsequent Civil Judgment was entered against
Defendant Bounty Alarms, Inc in the amount of $86, 217.00.
Plaintiff contends that after amicable attempts to collect the
judgement from Bounty Alarms, Inc failed, Plaintiff received a
Writ of Execution to levy the proceeds of a bank account held in
the name of Bounty Alarms, Inc. When Plaintiff learned the
balance of this account was less than $500.00, Plaintiff
discovered the existence of a separate account at the same bank under the name Bounty Alarms, LLC. Plaintiff obtained
an Alias Writ of Execution to levy the proceeds of the bank
account held in the name of Bounty Alarms, LLC.
Plaintiff claims that at no point during the litigation did
Bounty Alarms, Inc. indicate that Bounty Alarms, LLC existed or
that Plaintiff was employed at different times by both
entities.*fn1 Therefore, Plaintiff argues that the
Complaint, Arbitration Award, and the Judgement should be amended
to include Bounty Alarms, LLC, and that any proceeds in any bank
accounts held in the name of Bounty Alarms, LLC should be turned
over to Plaintiff in an attempt to satisfy the judgment.
In response, Defendant argues that time to amend pleadings
expired on May 28, 2004 pursuant to the Scheduling Order entered
by the Honorable Tonianne J. Bongiovanni. Defendant also argues
that the existence of Bounty Alarms, LLC was revealed to
Plaintiff and Plaintiff's counsel during initial discovery
FED.R.CIV.P. 16(b) applies to motions to amend pleadings filed
outside the time frames set forth in a Scheduling Order. Under
Rule 16(b), a plaintiff is required to establish good cause
before it will be permitted to amend. A court has considerable
discretion when determining what showing a moving party must make
to satisfy the Rule 16(b) good cause requirement. (3 JAMES WM.
MOORE ET AL., MOORE'S FEDERAL PRACTICE, § 16.14[b] (Matthew
Bender 3d ed. 1997). Good cause may be satisfied by a showing
that the movant's delay in filing the motion to amend stemmed
from "any . . . factor which might understandably account for
failure of counsel to undertake to comply with the Scheduling Order." Newton v. Dana
Corp. Parish Division, 1995 WL 368172, at *1 (E.D.P.A. 1995).
This Court finds Plaintiff's failure to comply with the
Scheduling Order mitigated by the fact that Defendant failed to
fully disclose that Bounty Alarms, Inc. and Bounty Alarms, LLC
were not collectively doing business as Bounty Alarms, the name
utilized throughout the arbitration process by both Defendant and
Arbitrator.*fn2 The Plaintiff and Arbitrator both operated
under the belief that Bounty Alarms encompassed both entities
collectively and intended to have both entities included when the
arbitration award was issued. (See Arbitration Award, filed
March 2, 2005.) Accordingly, the Court finds good cause exists to
allow Plaintiff to amend the existing Complaint in this action.
On this record, however, the Court finds no basis to support
the entry of a judgment against the entity Bounty Alarms, LLC.
Plaintiff has made no demonstration of liability on the part of
Bounty Alarms, LLC. Indeed, the LLC is not yet even a party to
this case. Until liability is established, Plaintiff is not
entitled to a judgment against Bounty Alarms, LLC, nor is
Plaintiff entitled to execute against Bounty Alarms LLC's
accounts. The Court has no idea what claims or defenses may be
asserted by the LLC. In short, while Plaintiff will be granted
leave to assert claims against the LLC, Plaintiff will also have
to proceed to litigate those claims.
ACCORDINGLY, IT IS, on this 20th day of October, 2005,
ORDERED that Plaintiff's Motion to file an Amended Complaint
is granted; and
IT IS FURTHER ORDERED that Plaintiff shall file his Amended
Complaint no later than October 31, 2005; and
IT IS FURTHER ORDERED that Plaintiff's Motion to Amend the
Arbitration Award and Judgment is denied; and
IT IS FURTHER ORDERED that Plaintiff's Motion to have the
proceeds of bank accounts in the name of Bounty Alarms, ...