The opinion of the court was delivered by: Simandle, District Judge
III. CONCLUSION ....................... 15
Two cardinal rules for a party seeking leave to amend a pleading are that a copy of the proposed amended pleading must be attached to the motion, and that the amendment, when filed, not exceed the scope of what the party sought and the court permitted. See L. Civ. R. 7.1(f). In these cases, plaintiffs violated both precepts, and this motion to dismiss requires a determination of the consequences.
This matter is before the Court upon two motions to dismiss in U.F.C.W. Local 56 Health and Welfare Fund v. J.D.'s Market (Civil No. 03-5026) and U.F.C.W. Local 56 Health and Welfare Fund v. Millville Supermarket, Inc. (Civ. No. 03-5027). In their motions, the defendants argue first that Counts Three through Six of the plaintiffs' two Second Amended Complaints should be dismissed under Fed. R. Civ. P. 12(b)(6) because the plaintiffs failed to obtain leave to amend their complaints to add these counts. Defendants argue alternatively that Counts Three through Six should be dismissed under Rule 12(b)(6) for failure to state a claim. For the reasons discussed below, the Court will grant the defendants' motions under Rules 15(a) and 12(f), Fed. R. Civ. P. (rather than Rule 12(b)(6)) because the plaintiffs did not seek or obtain leave to amend their complaints in the manner in which they amended.
These two cases were consolidated for discovery purposes and the motions to dismiss present identical issues. Both cases involve actions filed on October 22, 2003 in which the United Food and Commercial Workers Union Local 56 Health and Welfare Fund (the "Plaintiffs") claimed that the defendants J.D.'s Market and Millville Supermarket, Inc. (J.D.'s Market and Millville Supermarket shall be referred to collectively as the "Corporate Defendants")*fn1 failed to make timely payments to the U.F.C.W. Health and Welfare Fund and Pension Fund as required by certain labor contracts and trust agreements. Nearly two years after the filing of the two complaints and after a court-ordered settlement conference, the parties informed the Court that they had reached a settlement. Plaintiffs asserted that the terms of the settlement were memorialized in a letter from counsel for Plaintiffs to Jay Daunoras who was the principal of both Corporate Defendants. As part of the settlement, Jay Daunoras agreed to sign the settlement agreement both individually and on behalf of the corporation. On October 19, 2005, however, Jay Daunoras passed away before executing the written settlement agreement. After Mr. Daunoras' death, the parties continued to finalize the settlement with the understanding that Mr. Daunoras' estate (the "Estate") would guarantee payments under any settlement agreement.
In early March of 2006, Defendants obtained new counsel (Mr. Peter Fratarelli, Esq.). According to Defendants, Mr. Fratarelli informed Plaintiffs that, after reviewing Defendants' current financial statements and projections, "the funds necessary for any settlement agreement are not available as previously anticipated by Mr. Daunoras before his death." U.F.C.W. Local 56 Health and Welfare Fund v. J.D.'s Market, No. 03-2037, slip op. at 5 (D.N.J. March 26, 2006). On March 20, 2006, Plaintiffs filed a motion to enforce the settlement and to amend the complaints in both the J.D. Markets and Millville Supermarket matters. In their motion to amend the complaints Plaintiffs argued that the Estate and its personal representative are proper parties to the actions and that Plaintiffs "should be permitted to file [amended complaints] naming the Estate of [Jay] Daunoras and its personal representative, Beth Daunoras" as defendants. (Pl.'s Br. in Support of Pl.'s Mot. to Amend at 9, Def.'s Br. at Ex. A.) While Plaintiffs asserted that they should be able to add Beth Daunoras as a defendant in her capacity as Executrix of Jay Daunoras' Estate, in their reply brief for their motion to amend Plaintiffs stated that they had no intention of adding Beth Daunoras in her individual capacity. (Pl.'s Reply Br. in Support of Pl.'s Mot. to Amend at 3, n. 2., Def.'s Br. at Ex. B.)(emphasis added).*fn2
U.S. Magistrate Judge Ann Marie Donio held oral argument on Plaintiffs' motion to amend the complaints on May 11, 2006. At the May 11, 2006 hearing, Plaintiffs' counsel (Brett Last, Esq.) and the Court had the following exchange:
The Court: Now, the remaining issue then is whether I'm going to permit [Plaintiffs] to amend the complaint to add the estate [of Jay Daunoras] and add any claims against the estate for breach of a settlement agreement or enforcement of a settlement agreement.
The Court: The motion to amend the complaint --- to the extent there's a motion to file an amended complaint against the estate in any of these . . . pending actions, which I think was part of your motion, if I have that right ---
Mr. Last: Yes, Your Honor.
The Court: --- that's granted. The motion to enforce the settlement against the estate is denied without prejudice with the right to re-file once they're made a party. (Def.'s Reply Br. at Ex. A.)
On May 26, 2006 Judge Donio issued an order stating that "[f]or the reasons set forth on the record" on May 11, 2006, the Court: (1) granted Plaintiffs' motions to enforce the settlement agreement as to J.D.'s Market and Millville Supermarket; (2) denied Plaintiffs' motions to enforce the settlement with respect to the Estate of Jay Daunoras without prejudice; and (3) ...