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Darcy Smith, Ph.D v. Cynthia Borsella Lindemann

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


July 27, 2011

DARCY SMITH, PH.D, PLAINTIFF,
v.
CYNTHIA BORSELLA LINDEMANN, ESQ., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Patty Shwartz United States Magistrate Judge

OPINION & ORDER

ON INFORMAL APPLICATION

This matter having come before the Court by way of letter of Defendants Urbinato andStarr for leave to file a Third-Party Complaint against Laurence M. Smith Esq. and Wolff &Samson, P.C. pursuant to Fed. R. Civ. P. 14 and 15;*fn1 and the Court having considered the record, the parties' submissions, and the governing law;*fn2and the standards under Rule 15 governing motions to amend an answer and file a Third-Party Complaint under Rule 14, see Ryan v. Collucio, 183 F.R.D. 420, 423 (D.N.J. 1998);and Rule 15(a) stating, in pertinent, "a party may amend its pleading only with theopposing party's written consent or the court's leave. The court should freely give leave whenjustice so requires," Fed. R. Civ. P. 15(a)(2); and the Court having the discretion to determine whether to grant leave to amend theoriginal pleadings, Foman v. Davis, 371 U.S. 178, 182 (1962);

and the Court noting that leave to amend may be denied where there is: (1) undue delay,(2) bad faith or dilatory motive, (3) undue prejudice, or (4) futility of amendment, see id.;and there being no assertion of undue delay, undue prejudice, bad faith, or dilatorymotive;and the Court having directed the parties to address Plaintiff's assertion that the proposedThird-Party Complaint is futile, see Order, June 30, 2011, ECF No. 75;and the Court considering an amendment futile if it "is frivolous or advances a claim ordefense that is legally insufficient on its face," Harrison Beverage Co. v. Dribeck Imps. Inc., 133F.R.D. 463, 468 (D.N.J. 1990) (internal citations and quotations marks omitted);and in determining whether an amendment is insufficient on its face, the Court employsthe standard applied to Rule 12(b)(6) motions to dismiss, In re Burlington Coat Factory Sec.Litig., 114 F.3d 1410, 1434 (3d Cir. 1997), which requires the Court to decide not whether themovant will ultimately prevail, but rather whether the complaint sets forth "enough facts to statea claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(1955);*fn3and the Court finding that the factual allegations against Laurence M. Smith, Esq., are sufficient to set forth a plausible claim for relief for contribution, but not indemnification;*fn4and Plaintiff's objections to this application not changing the result;*fn5

and the Court finding that the factual allegations against Wolff & Samson are notsufficient to set forth a plausible claim for relief;*fn6

ORDERED that the Urbinato/Starr Defendants' motion for leave to file a Third-Party Complaint [Docket No. 76] is granted as to the claim for contribution against Laurence Smith, Esq., but denied as to the claim for indemnification against Laurence Smith, Esq., and as to the claims against Wolff & Samson;

IT IS FURTHER ORDERED that the Urbinato/Starr Defendants shall file their Answer to the Amended Complaint and their Third-Party Complaint no later than August 3, 2011; andIT IS FURTHER ORDERED that all other deadlines shall remain unchanged. When theThird-Party Defendant enters an appearance, the parties shall request a telephone conference.


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