United States District Court, D. New Jersey
OPINION AND ORDER
B. CLARK, III, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on a motion by
Plaintiff Glotech USA, Inc. (“Glotech” or
“Plaintiff”) for leave to amend its Complaint
[Dkt. No. 71]. Defendant Bluebird, Inc.
(“Bluebird” or “Defendant”) opposes
Plaintiff's motion [Dkt. No. 73]. For the reasons set
forth below, Plaintiff's motion to amend is
GRANTED in part and DENIED in part.
manufactures and sells “enterprise mobile
devices.” Dkt. No. 73 at p. 4. In 2009, Bluebird and
Glotech entered into a written agreement whereby Glotech
would promote Bluebird's products to potential customers
in the United States (“the Commission
Agreement”). Compl. at ¶ 12. Pursuant to the
Commission Agreement, Glotech's fee for the successful
promotion of Bluebird's products to new customers would
be the difference in price between Bluebird's quoted
price for a product to Glotech and the actual price paid by
the new customer for the product. According to Defendant,
Glotech would only be entitled to a fee under the Commission
Agreement if Glotech “secured the customer, established
the communication network, and managed the customer as a
reseller where payment would go through Glotech.” Dkt.
No. 73 at p. 5. Plaintiff, however, appears to contend that
Glotech would earn a commission “if Bluebird entered
into a sales contract directly with a new client developed by
Glotech, and sales occurred pursuant to that
contract.” Dkt. No. 76 at p. 3.
to Plaintiff, Glotech introduced Bluebird products to two
customers, Invivodata and PHT, which are now two of the
largest purchasers of Bluebird products. Plaintiff contends
that in violation of the Commission Agreement, Bluebird
failed to pay Glotech its commission on sales of Bluebird
products to Invivodata and PHT. Based upon Bluebird's
failure to pay the commission for PHT and Invivodata, to
which Glotech believes it is entitled, Glotech filed its
Complaint in this action, asserting claims for: (1)
non-payment of commissions; (2) breach of contract; (3)
breach of the implied covenant of good faith and fair
dealing; and (4) intentional interference with prospective
economic advantage. In response, Defendant claims that no
commission is owed to Glotech for sales to PHT and Invivodata
because after Glotech was “unable to close the deals,
” Bluebird directly negotiated a deal with Invivodata
in October 2011 and with PHT in April 2011 “with much
lower pricing terms than those which Glotech had originally
proposed for PHT.” Dkt. No. 73 at p. 5.
now seeks to amend to add two additional counts to its
Complaint stating causes of action for: (1) unjust enrichment
and; (2) quantum meruit. These additional counts, Plaintiff
states, are pled in the alternative to Plaintiff's
existing claims, and will allow Plaintiff to recover
compensation purportedly owed to Glotech by Bluebird for
services performed by Glotech under a quasi contract theory
in the event that a determination is made that Glotech is not
owed any compensation under the Commission Agreement. The
basis for Plaintiff's two additional proposed causes of
action is two-fold. First, Plaintiff claims that while
Defendant initially took the position that prices for PHT and
Invivodata were quoted directly from Bluebird to PHT and
Invivodata and that Glotech was never quoted prices for those
customers, Defendant has shifted its litigation strategy and
is now taking the position that Glotech was in fact quoted
prices for PHT and Invivodata, but that the prices quoted to
Glotech were higher than the actual sales price of
Bluebird's products to those customers.
during the pendency of this action, eResearch Technology,
Inc. (“ERT”) has become the successor company to
both PHT and Invivodata. After last selling its products to
ERT in 2015, Bluebird entered into a contract with ERT in
August of 2016 for sales of a new Bluebird product (the
“ERT Agreement”). The ERT Agreement has not yet
been implemented and Bluebird has not yet made any sales
under the ERT Agreement. Defendants claim that Glotech had no
involvement in the ERT Agreement and that Glotech could not
have been involved in negotiating the ERT Agreement because
it included questions about new Bluebird products which
Glotech would not have been equipped to address. Glotech
claims to have learned of the ERT Agreement in October of
2016 “through its own investigation” and contends
that because Glotech was initially responsible for
introducing ERT, through PHT and Invivodata, to Bluebird
products, Glotech is entitled to compensation for sales that
have resulted from that introduction.
Plaintiff seeks to amend the first count of its Complaint to
seek exemplary damages under New Jersey's Commission
Protection Act (the “CPA”). In support of this
amendment, Glotech claims that it “learned it had a
right to seek exemplary damages as relief for its [nonpayment
of commission] count.” Dkt. No. 71 at p. 15, n. 1.
Plaintiff does not state what led to the discovery of its
purported right to seek the proposed relief or why this
relief was not sought in Plaintiff's initial Complaint.
threshold issue in resolving a motion to amend is the
determination of whether the motion is governed by Rule 15 or
Rule 16 of the Federal Rules of Civil Procedure.”
Karlo v. Pittsburgh Glass Works, LLC, 2011 WL
5170445, at *2 (W.D.Pa. Oct. 31, 2011). Rule 15 states, in
pertinent part, “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.P. 15(a)(2).
“Rule 16, on the other hand, requires a party to
demonstrate ‘good cause' prior to the Court
amending its scheduling order.” Karlo, 2011 WL
5170445, at *2 (citing Fed.R.Civ.P. 16(b)(4)). In situations
such as the present, where a party seeks to amend
“after the deadline for doing so set by the Court, the
movant must satisfy the [good cause standard] of Rule 16
before the Court will turn to Rule 15.” Id. at
*2; see also Dimensional Commc'n, Inc. v. OZ Optics,
Ltd., 148 F.App'x 82, 85 (3d Cir. 2005) (instructing
that the Third Circuit has adopted a good cause standard when
determining the propriety of a motion to amend after the
deadline has elapsed).
initial Pretrial Scheduling Order in this matter was entered
on April 27, 2015, and set forth a deadline for moving to
amend pleadings on September 30, 2015. See Dkt. No.
21 at ¶ 10(b). Plaintiff first sought the Court's
leave to move to amend on February 17, 2016 [Dkt. No. 41],
which the Court granted [Dkt. No. 43], and Plaintiff filed a
motion to amend on February 25, 2016 [Dkt. No. 44]. The
parties agreed to proceed to private mediation in an attempt
to resolve this matter and the Court entered a stay of
discovery and terminated Plaintiff's motion to amend
pending the outcome of the parties' mediation.
See Dkt. No. 52. Mediation was unsuccessful and
Plaintiff filed a renewed motion to amend its Complaint on
August 26, 2016. See Dkt. No. 55. While its motion
to amend was pending, Plaintiff sought the Court's
permission to add an additional amendment to its motion.
See Dkt. No. 67. The Court granted Plaintiff's
request to move to further amend its Complaint and terminated
Plaintiff's then pending motion to allow Plaintiff to
consolidate all of its proposed amendments into a single
motion. See Dkt. No. 70. Plaintiff filed its
consolidated motion to amend on January 27, 2017, which is
now pending before the Court [Dkt. No. 71]. Defendant, citing
the January 27, 2017 filing date of Plaintiff's present
motion to amend, asserts that Plaintiff's motion was
filed sixteen months after the expiration of the deadline set
forth the Pretrial Scheduling Order. However, while
Plaintiff's presently pending motion was not filed until
January 27, 2017, Plaintiff first moved to amend in February
17, 2016, and as a result of various delays, which are not
attributable solely to Plaintiff, resolution of
Plaintiff's request has been delayed until the present.
Accordingly, in calculating the amount of time between the
expiration of the deadline to move to amend and
Plaintiff's motion to amend, the Court will utilize the
original filing date of February 25, 2016, which results in a
five month delay, rather than the sixteen month delay
asserted by Defendant.
light of Plaintiff's motion to amend being filed after
the expiration of the September 30, 2015 deadline, the Court
first determines whether Plaintiff has demonstrated
“good cause” under Rule 16. Rule 16 of the
Federal Rules of Civil Procedure authorizes courts to enter
schedules of proceedings. The pretrial scheduling order
allows a court to take “judicial control over a case
and to schedule dates for completion by the parties of the
principal pretrial steps.” Harrison Beverage Co. v.
Dribeck Imps., Inc., 133 F.R.D. 463, 469 (D.N.J. Oct.
19, 1990) (quoting Fed.R.Civ.P. 16 advisory committee's
note (1983 Amendment)); see also Newton v. A.C. & S.,
Inc., 918 F.2d 1121, 1126 (3d Cir. 1990) (stating the
purpose of Rule 16 is to provide for judicial control over
cases, streamline proceedings, maximize efficiency of the
court system, and actively manage the timetable of case
preparation to expedite speedy and efficient disposition of
scheduling order must, among other things, “limit the
time to join other parties, amend the pleadings, complete
discovery, and file motions.” Fed.R.Civ.P. 16(b)(3)(A).
The requirement of a deadline for amending pleadings in the
pretrial scheduling order “assures that at some point .
. . the pleadings will be fixed.” Fed.R.Civ.P. 16(b)
advisory committee's note (1983 Amendment); see also
Harrison, 133 F.R.D. at 469 (“The careful scheme
of reasonable framing and enforcement of scheduling orders
for case management would thus be nullified if a party could
inject amended pleadings upon a showing of less than good
cause after scheduling deadlines have expired.”). The
burden is on the moving party to show “good
cause” for its failure to comply with the applicable
scheduling order, and accordingly, for the Court to allow its
proposed amended pleading. Prince v. Aiellos, No.
09-5429, 2012 WL 1883812, at *6 (D.N.J. May 22, 2012)
(quoting Graham, 271 F.R.D. at 118); see also
Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614
F.3d 57, 84 (3d Cir. 2010) (affirming the trial court's
holding that “Rule 16(b)(4) focuses on the moving
party's burden to show due diligence”).
“good cause” exists under Rule 16 hinges to a
large extent on the diligence, or lack thereof, of the moving
party. GlobespanVirata, Inc. v. Texas Instruments,
Inc., 2005 WL 1638136, at *3 (D.N.J. July 12, 2005)
(quoting Rent-A-Ctr. v. Mamaroneck Ave. Corp., 215
F.R.D. 100, 104 (S.D.N.Y. Apr. 9, 2003)). Put succinctly,
“[a]bsent diligence, there is no ‘good
cause.' ” Chancellor v. Pottsgrove Sch.
Dist.,501 F.Supp.2d 695, 702 (E.D.Pa. Aug.8, 2007);
see also Fed. R. Civ. P. 16(b), advisory
committee's note (1983 Amendment) (“[T]he ...