The opinion of the court was delivered by: Esther Salas United States Magistrate Judge
Pending before this Court is Plaintiff Wrist Worldwide Trading GMBH's ("Plaintiff") motion to amend paragraphs eight and eighteen of Plaintiff's verified complaint (See Docket Entry No. 1, the "Verified Complaint"). (Docket Entry No. 16, Notice of Motion dated September 1, 2010 (the "Motion"). Having considered the parties' submissions, the Court GRANTS the Motion in part and DENIES the Motion without prejudice in part.
I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On May 7, 2010, Plaintiff filed the Verified Complaint against Defendant MV Auto Banner, in rem, and Defendant STX Pan Ocean Co. Ltd. ("Defendant Pan Ocean"), the owner of the MV Auto Banner. (Docket Entry No. 1). Defendants filed an answer on June 21, 2010 (Docket Entry No. 11), and on August 3, 2010, the Court entered an initial pre-trial scheduling order which set various deadlines for discovery, a briefing schedule for the instant Motion, and also indicated that the parties had already exchanged Rule 26 disclosures. (Docket Entry No. 14). On September 1, 2010, Plaintiff filed the instant Motion along with a supporting brief and exhibits. (Docket Entry No. 17, Memorandum of Law in Support of Motion to Amend the Verified Complaint ("Pl.'s Moving Br.")). On September 22, 2010, Defendant Pan Ocean filed a brief in opposition (Docket Entry No. 19, "Def.'s Opp. Br.) and on September 29, 2010, Plaintiff filed its reply brief (Docket Entry No. 20, "Pl.'s Reply Br.").*fn1
This action arises out of Plaintiff's alleged act of supplying fuel oil and gas oil ("Bunkers") in March and April of 2009 to two ocean-going vessels, the MV Auto Banner and the MV Auto Atlas,*fn2 which are purportedly owned and managed by Defendant Pan Ocean. (Verified Compl. ¶¶ 5-7). At the time Plaintiff supplied the Bunkers the vessels were on charter to a third-party. (Id. at ¶ 8). Plaintiff alleges that it was not paid for the Bunkers (Verified Compl. ¶¶ 12-13), and, as a result, has brought an in rem action against one of the vessels, Defendant MV Auto Banner, and an in personam action against the owner of the MV Auto Banner, Defendant Pan Ocean. In sum, Plaintiff alleges that Defendant Pan Ocean is contractually and/or otherwise liable for the unpaid balance of the Bunkers. Specifically, Plaintiff alleges that: (1) Defendant Pan Ocean, as the owner of the vessels, is contractually liable for the unpaid balance of the Bunkers; (2) Defendant Pan Ocean is liable under an agency theory because ERSAL, who allegedly chartered the vessels from Defendant Pan Ocean, ordered and was supplied with the Bunkers; (3) Defendant Pan Ocean was a third-party beneficiary of the Bunkers; and/or (4) Defendant Pan Ocean was unjustly enriched by receiving the benefits of the Bunkers. (Verified Compl. ¶¶ 16-20).
The Motion seeks to amend paragraphs eight and eighteen of the Verified Complaint (the "Proposed Amendments"). Specifically, Plaintiff seeks to amend the Verified Complaint to: (1) amend paragraph eight to allege that the charterer of the vessel was "Litan International, S.A. ("Litan"), which was owned and guaranteed by the Abu Rashed Group"; (2) amend paragraph eight to add an allegation that the members of the Abu Rashed Group *fn3 "operated as a unit without regard to their corporate separateness, with Litan being merely a shell corporation dominated and controlled by the Abu Rashed Group. . . ." (the "Proposed Alter Ego Allegation"); and (3) allege that Defendant Pan Ocean is liable for the Bunkers under an agency theory because the Abu Rashed Group, as the alter ego of Litan, acted as an agent on behalf of Defendant Pan Ocean when ordering the Bunkers (the "Proposed Agency Claim") (Pl.'s Moving Br. at 2-3).
Fed. R. Civ. P. 15(a) allows a party to amend its pleading by leave of court when justice so requires. Leave to amend pleadings is to be freely given. Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The decision to grant leave to amend rests within the discretion of the court. Foman, 371 U.S. at 182. Pursuant to Foman, leave to amend may be denied on the basis of: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the opposing party; and (4) futility of amendment. Id. "Only when these factors suggest that amendment would be 'unjust' should the court deny leave." Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir. 2006) (internal citations omitted). Here, Defendant Pan Ocean argues that the Motion should be denied on the basis of Plaintiff's undue delay and bad faith, as well as undue prejudice to Defendant Pan Ocean. Moreover, Defendant Pan Ocean also argues that the Motion should be denied because the Proposed Amendments are futile. (Def.'s Opp. Br. at 1). The Court will discuss each argument in turn.
A. Undue Delay, Undue Prejudice and Bad Faith or Dilatory Motive
Defendant Pan Ocean argues that Plaintiff unduly delayed in bringing the Motion because Plaintiff waited four months from the time it filed the Verified Complaint to file the instant Motion. (Def.'s Opp. Br. at 5). Defendant Pan Ocean contends that all of the information contained in the Proposed Amendments have been within the ken of Plaintiff since March or April 2009, when the Bunkers at issue were allegedly supplied to the vessels. (Id.).
Case law provides that "there is no presumptive period in which a motion for leave to amend is deemed 'timely' or in which delay becomes 'undue.'" Ford Motor Co. v. Edgewood Prop., Inc., Civ. Action No. 06-1278, 2010 U.S. Dist. LEXIS 130866, at *16 (D.N.J. Dec. 10, 2010)(citing Coulson v. Town of Kearney, Civ. Action No. 07-5893, 2010 U.S. Dist. LEXIS 3711, *8 (D.N.J. Jan. 19, 2010)). In determining whether the instant Motion was the result of undue delay, this Court must examine Plaintiff's reasons for not moving to amend sooner. AstraZeneca AB v. Ranbaxy Pharms., Inc., Civ. No. 05-5553, 2008 WL 5272018, at *6 (D.N.J. Dec. 15, 2008). Moreover, delay alone does not justify denying a motion to amend. Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Rather, only when the delay places an unwarranted burden on the court or on the opposing party is a denial on the basis of delay appropriate. Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. ...