AV DESIGN SERVICES, LLC v. DURANT

D. New Jersey

AV DESIGN SERVICES, LLC v. DURANT

District Court, D. New Jersey·Decided March 13, 2020·No. 1:19-cv-08688·Unknown

Opinion

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE __________________________________ : AV DESIGN SERVICES, LLC, et al., : : Plaintiffs, : : Civil No. 19-8688 (RBK/KMW) v. : : OPINION JAMES M. DURANT, : : Defendant. : __________________________________ :

KUGLER, United States District Judge: Defendant/Counterclaimant James M. Durant brings a host of state law counterclaims against Plaintiffs/Counterclaim Defendants AV Design Services, LLC (“AVDS”), James E. Landy, and Rossen Karadov (collectively, the “AVDS Parties”). Presently before the Court are Durant’s Motion to File an Amended Counterclaim (Doc. No. 33) and the AVDS Parties’ Motion to Dismiss Durant’s Counterclaim (Doc. No. 14). The AVDS Parties’ filed their Motion to Dismiss on June 11, 2019, and briefing was completed on July 12, 2019. Durant then filed his Motion to Amend on December 19, 2019. However, the AVDS’ parties never filed an opposition brief, nor requested an extension of time to do so. As such, these motions are ripe for decision. Amendments to pleadings are governed by Federal Rule of Civil Procedure 15(a), which states that leave to amend “shall be freely given as justice so requires.” The Third Circuit has shown a strong liberality in allowing amendments under Rule 15 in order to ensure that claims will be decided on the merits rather than on technicalities. Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990). Leave to amend under Rule 15 should be denied only in certain circumstances, such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice, or clear futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Fed. Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 874 (3d Cir. 1994).

As mentioned above, the AVDS Parties have not filed any opposition to Durant’s Motion to Amend. In light of , and hearing no opposition from the AVDS Parties, the Court will GRANT Durant’s Motion to Amend. Further, the filing of Durant’s Amended Counterclaim will moot the AVDS Parties’ pending Motion to Dismiss, so that motion will be DENIED.

Dated: 03/13/2020 /s/ Robert B. Kugler ROBERT B. KUGLER United States District Judge

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE __________________________________ : AV DESIGN SERVICES, LLC, et al., : : Plaintiffs, : : Civil No. 19-8688 (RBK/KMW) v. : : OPINION JAMES M. DURANT, : : Defendant. : __________________________________ :

KUGLER, United States District Judge: Defendant/Counterclaimant James M. Durant brings a host of state law counterclaims against Plaintiffs/Counterclaim Defendants AV Design Services, LLC (“AVDS”), James E. Landy, and Rossen Karadov (collectively, the “AVDS Parties”). Presently before the Court are Durant’s Motion to File an Amended Counterclaim (Doc. No. 33) and the AVDS Parties’ Motion to Dismiss Durant’s Counterclaim (Doc. No. 14). The AVDS Parties’ filed their Motion to Dismiss on June 11, 2019, and briefing was completed on July 12, 2019. Durant then filed his Motion to Amend on December 19, 2019. However, the AVDS’ parties never filed an opposition brief, nor requested an extension of time to do so. As such, these motions are ripe for decision. Amendments to pleadings are governed by Federal Rule of Civil Procedure 15(a), which states that leave to amend “shall be freely given as justice so requires.” The Third Circuit has shown a strong liberality in allowing amendments under Rule 15 in order to ensure that claims will be decided on the merits rather than on technicalities. Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990). Leave to amend under Rule 15 should be denied only in certain circumstances, such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice, or clear futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Fed. Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 874 (3d Cir. 1994).

As mentioned above, the AVDS Parties have not filed any opposition to Durant’s Motion to Amend. In light of , and hearing no opposition from the AVDS Parties, the Court will GRANT Durant’s Motion to Amend. Further, the filing of Durant’s Amended Counterclaim will moot the AVDS Parties’ pending Motion to Dismiss, so that motion will be DENIED.

Dated: 03/13/2020 /s/ Robert B. Kugler ROBERT B. KUGLER United States District Judge

AV DESIGN SERVICES, LLC v. DURANT, (D.N.J. 2020).

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Federal Deposit Insurance Corporation, as Receiver for the First National Bank of Toms River, New Jersey v. Lawrence E. Bathgate, II Novasau Associates, a New Jersey Limited Partnership New Nas, Inc. T. Pamela Bathgate 54 Buena Vista Associates, a New Jersey Limited Partnership Tuscol Development, Inc., a New Jersey Corporation Old Monmouth Associates, a New Jersey Partnership Airport Associates, a New Jersey Partnership Gerald A. Gura the Club at West Deptford, a Limited Partnership, a New Jersey Limited Partnership State of New Jersey Columbia Savings and Loan Association Asset Recovery Management, Inc. William Bowman Associates, Inc. National Westminster Bank Nj, Successor to First Jersey National Bank/south. Lawrence E. Bathgate, II Novasau Associates New Nas, Inc. 54 Buena Vista Associates, a New Jersey Limited Partnership Tuscol Development, Inc., a New Jersey Corporation Old Monmouth Associates, a New Jersey Partnership, Third-Party v. William Barlow John C. Fellows, Jr. Ebert L. Hall Joseph P. Iaria David E. Johnson, Jr. Irene F. Kramer Jacqueline F. Pappas John F. Russo Leonard G. Lomell Office of the Comptroller of the Currency John McDougal Third-Party Federal Deposit Insurance Corporation, as Receiver for the First National Bank of Toms River v. Nla Associates Limited Partnership, a New Jersey Limited Partnership Lgp-I Limited Partnership, a New Jersey Limited Partnership Lgp-I Capital Corp., a New Jersey Corporation New Nas, Inc. Lawrence E. Bathgate, II Alan B. Landis Novasau Associates, a Limited Partnership, a New Jersey Limited Partnership. Lawrence Bathgate, II Novasau Associates, Limited Partnership New Nas, Inc. 54 Buena Vista Associates Tuscol Development, Inc. And Old Monmouth Associates (The Bathgate Defendants)

27 F.3d 850 (First Circuit, 1994)

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