United States District Court, D. New Jersey
MARIE DOPICO, for Plaintiff and the class of Members defined herein Plaintiff,
IMS TRADING CORP, et al., Defendants.
DOUGLAS E. ARPERT United States Magistrate Judge
matter comes before the Court on a motion [ECF No. 52] by
Plaintiffs for leave to file a Third Amended Complaint.
Defendant has opposed the Motion. For the reasons set forth
below, Plaintiffs' Motion is GRANTED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
bring this putative class action against Defendant IMS
Trading Corporation a/k/a IMS Pet Industries
(“IMS” or “Defendant”), alleging that
dog treats marketed and sold to pet owners by IMS caused
illness and/or death to dogs that consumed the product. The
matter was removed from the Superior Court of New Jersey in
March 2014, after which Plaintiffs filed an Amended Complaint
containing the following Counts: (a) Count I, breach of
express warranty under the Uniform Commercial Code
(“UCC”); (b) Count II, breach of implied warranty
under the UCC; (c) Count III, violation of the New Jersey
Consumer Fraud Act (“NJCFA”); (d) Count IV,
violation of the Magnuson-Moss Warranty Act
(“MMWA”); (e) Count V, unjust enrichment; (f)
Count VI, failure to warn (products liability); and (g) Count
VII, defective design or manufacture (products liability).
moved to dismiss the Amended Complaint, and in April 2015,
Judge Sheridan dismissed Counts II, III and V with prejudice
as being subsumed by the New Jersey Products Liability Act,
N.J.S.A. § 2A:58C, et seq.
(“NJPLA”). In September 2015, Plaintiffs filed a
Motion for leave to file a Second Amended Complaint
(“SAC”) [ECF No. 31] naming two additional class
representatives, one a resident of New Jersey and the other a
resident of Arizona. The proposed SAC included certain claims
applicable to the Arizona Plaintiff only, which are as
follows: (a) breach of implied warranty under the UCC (Count
II); (b) violation of the NJCFA (Count III); (c) unjust
enrichment (Count V); and (d) violation of the Arizona
Consumer Fraud Act (Count VIII). Defendant opposed the motion
on the ground that Judge Sheridan previously dismissed with
prejudice the claims for breach of implied warranty,
violation of the NJCFA, and unjust enrichment.
February 2016, the Court issued an Order granting
Plaintiffs' Motion, finding that a New Jersey Plaintiff,
to whom New Jersey law applied, brought the claims which were
previously dismissed by Judge Sheridan as being subsumed by
the NJPLA. [ECF No. 34]. In contrast, the out-of-state
Plaintiff named in the SAC alleged that he resided in
Arizona, purchased Defendant's dog treats in Arizona,
and, presumably, tended to his dog which allegedly became ill
in Arizona, where he incurred over $200 in veterinary bills.
Therefore, the Court found that, before the question of NJPLA
subsumption is reached, it must first be established that the
NJPLA applies to the Arizona Plaintiff's claims, vis
a vis a choice of law analysis. Defendant subsequently
filed an appeal with the District Judge, who affirmed the
Plaintiffs move for leave to file a Third Amended Complaint
(“TAC”), in order to name an additional class
representative, a resident of Oregon. [ECF No. 52]. Like the
SAC, the proposed TAC includes certain claims applicable to
the Oregon Plaintiff only, which are as follows: (a) breach
of implied warranty under the UCC (Count II); (b) violation
of the NJCFA (Count III); (c) unjust enrichment (Count V);
and (d) violation of the Oregon Unlawful Trade Practices Act
(“UTPA”) (Count IX). Defendant opposes the motion
and, once again, argues that the TAC attempts to re-plead
claims which were previously dismissed as subsumed by the
NJPLA through Counts II, III, and V. Defendant also, for the
first time, challenges Plaintiffs' claims under Counts I
and IV as futile, contending that the challenged
representations are inactionable under the applicable law.
Finally, Defendant contests Count IX. Moreover, in July 2017,
Defendant filed a Motion to Dismiss also challenging
Plaintiffs' claims as alleged under Counts I and IV. [ECF
No. 56]. That Motion is currently pending.
Standard of Review
threshold issue, Defendant argues that Plaintiffs must
demonstrate good cause under Federal Rule of Civil Procedure
16(b)(4), because the instant Motion was untimely filed.
Defendant's Opposition Brief (“Def.'s
Opp'n.”), at 12-17. In that connection, Defendant
contends that good cause is lacking, because Plaintiffs had
knowledge of the potential new Plaintiff and UTPA claim
before August 30, 2016, i.e., the Court imposed
deadline for amending the pleadings.Id., at 13-15.
However, this argument is without merit, as the circumstances
under which Plaintiffs filed this Motion constitute good
a motion to amend is generally governed by Rule 15(a), a
party who moves to amend a pleading “after a scheduling
order deadline has passed must also meet Rule 16's
‘good cause requirement.'” Kuchinsky v.
Pressler & Pressler, LLP, No. 12-1903, 2014 U.S.
Dist. LEXIS 58461, at *5 (D.N.J. April 28, 2014) (citing
Dimensional Commc'ns, Inc. v. OZ Optics, Ltd.,
148 F. App'x 82, 85 (3d Cir. 2005)). To demonstrate good
cause pursuant to Rule 16, the moving party must show that,
despite its diligence, the deadlines set forth in the
scheduling order could not reasonably be met. Venetec
Inter., Inc. v. Nexus Med., LLC, 541 F.Supp.2d 612, 618
(D. Del. 2008). For this reason, a District Court may deny a
Motion to amend for lack of good cause if the moving party
had “knowledge of [a] potential claim before the
deadline to amend” expired. Stallings v. IBM
Corp., No. 8-3121, 2009 U.S. Dist. LEXIS 81963, at *47
(D.N.J. Sept. 8, 2009) (citations omitted). On the other
hand, a finding of good cause is appropriate under Rule 16
where a moving party provides a “sufficient explanation
of its diligence.” Harbor Laundry Sales, Inc. v.
Mayflowers Textile Serv. Co., No. 09-6269, 2011 U.S.
Dist. LEXIS 144878, at *15 (D.N.J. Dec. 16, 2011).
case, Rule 16 does not serve as a basis for denying
Plaintiffs' Motion. Defendant argues that, because
“Plaintiffs have purportedly represented a national
class of consumers. . . Plaintiffs [cannot] claim that the
potential new plaintiff was completely unknown to
Plaintiffs' counsel . . . .” Def.'s Opp'n.,
at 13. Yet the representation of a nation-wide class, which
presumably comprises of numerous individuals, does not
reasonably suggest that counsel is informed as to the
identity of every class member. To the contrary, Plaintiffs
could not have complied with this Court's deadline
through the exercise of reasonable diligence. Indeed,
Plaintiffs contend that they were contacted by the Oregon
Plaintiff after the deadline passed, and subsequently moved
to amend the SAC, to include a new class representative and
claim under the UTPA. Under these circumstances, therefore,
Plaintiffs have satisfied their burden of demonstrating good
cause under Rule 16. See Sabatino v. Union Twp., No.
11-1656, 2013 U.S. Dist. LEXIS 54866, at *11-18 (D.N.J. April
15, 2013) (permitting the plaintiff to file an amended
complaint naming additional parties, as the identities of
those parties were not clear prior to the date upon which all
proposed amendments were to be submitted).
found good cause, the Court proceeds to examine
Plaintiffs' proposed amendments under the liberal
standard of Rule 15(a). Pursuant to Rule 15(a), “a
party may amend its pleading only with the opposing
party's written consent or the court's leave”
and “[t]he court should freely give leave when justice
so requires.” The decision to grant leave to amend
rests within the sound discretion of the trial court.
Zenith Radio Corp. v. Hazeltine Research Inc., 401
U.S. 321, 330 (1970). In determining a motion for leave to
amend, courts consider the following factors: (1) undue delay
on the part of the party seeking to amend; (2) bad faith or
dilatory motive behind the amendment; (3) repeated failure to
cure deficiencies through multiple prior amendments; (4)
undue prejudice on the opposing party; and/or (5) futility of
the amendment. See Great Western Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d
Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178,