United States District Court, D. New Jersey
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Gloria Lee's
(“Lee”) motion to amend her Complaint to add a
fraud-in-the-inducement claim against Defendant Abderrazak
Zakaria (“Zakaria”). D.E. 58. Zakaria has opposed
the motion. D.E. 60. The Court has considered the motion,
opposition and applicable law. For the reasons set forth
herein, Lee's motion to amend the Amended Complaint is
24, 2012, Lee filed a Complaint against Zakaria and his
company, A to Z Trading, LLC (“A to Z”), alleging
claims sounding in both breach of contract and fraud.
Complaint, July 24, 2012, D.E. 1. On May 27, 2016, Plaintiff
filed an Amended Complaint, alleging the following counts:
(1) breach of contract; (2) implied contract; (3) book
account; (4) account stated; and (5) fraud. Am. Compl., D.E.
28, ¶¶ 6-40. Counts One to Four were brought
against A to Z only, but Count Five was brought against both
A to Z and Zakaria, jointly and severally. Id. Lee
alleged the following facts.
August 2011, Lee met Zakaria at a trade show in Las Vegas,
and pursuant to Zakaria's authorization, sold to A to Z
432 jackets for $84, 240. Am. Complaint, D.E. 28,
¶¶ 6, 18, 19. Subsequently, A to Z amended its
jacket order, which included an additional 60 jackets for
$11, 700, for a total number of 492 jackets at a total
purchase price of $95, 940. Id. ¶¶ 7, 8,
22, 26. The jackets were delivered to Zakaria's warehouse
on October 27, 2011. Id. ¶¶ 7-8, 25-26.
Lee alleges that Defendants failed to remit any of the $95,
940 owed to Lee. Id. ¶¶ 8, 25.
filed a motion to dismiss Count Five of the Amended Complaint
on June 10, 2016. D.E. 29. On October 11, 2016, Judge Salas
granted the motion, without prejudice, based on the
economic-loss doctrine. Opinion, Oct. 11, 2016, D.E. 38. On
November 30, 2016, Lee filed a motion to amend her Amended
Complaint in an effort to bring a fraud claim against Zakaria
that was not barred by the economic-loss doctrine. D.E. 40.
This motion was dismissed for procedural reasons and Lee was
granted until December 9, 2016 to file a proper motion to
amend. D.E. 41. Lee filed the new motion to amend on December
8, 2016. D.E. 42. On May 8, 2017, the Court denied Lee's
motion to amend as futile because the fraud claim as alleged
was intrinsic to the contract and therefore, barred by the
economic-loss doctrine. D.E. 47. Lee then appealed this
Court's Order to Judge Salas but sought an extension of
time to file the brief in support of her appeal. D.E. 48.
Judge Salas granted Lee's request, and directed that any
appeal of this Court's decision, and accompanying brief,
be filed by July 7, 2017. D.E. 49.
October 13, 2017, new counsel for Lee entered an appearance
and notified the Court that prior counsel for Lee, Robert
Vort, passed away on September 3, 2017, and had been ill for
several months before his passing. D.E. 51, 52. On November 8,
2017, Lee's new counsel filed a letter with the Court
seeking leave to file an appropriate Second Amended
Complaint. D.E. 54. The Court held a telephone status
conference on December 4, 2017, to address Lee's request
for leave to amend. D.E. 55. At the conclusion of the
telephone status conference, the Court entered an Amended
Scheduling Order setting December 22, 2017 as the deadline by
which Lee must file her motion to amend. D.E. 56.
filed the instant motion to amend on December 22, 2017,
Zakaria filed his opposition on January 9, 2018, and Lee
filed her reply on January 16, 2018. D.E. 58, 60, 61.
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, No. 10-1283,
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)).
that Lee's motion was filed after the original January
31, 2017 deadline for the filing of motions to amend the
pleadings set forth in the Court's August 22, 2016
Scheduling Order, D.E. 37, the first question before the
Court is whether good cause exists to adjust the deadline to
permit Lee to now file the instant motion.
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. 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 cases).
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 v. Progressive Direct Ins. Co., ...