Cali v. Petri Cigar Co. of California

9 F.R.D. 316, 1949 U.S. Dist. LEXIS 3210

• Court: District Court, N.D. Ohio
• Decided: July 27, 1949
• Docket: Civ. No. 25908
• Status: Published

Opinion

JONES, Chief Judge.

This is an action for breach of an employment contract. The case was filed in the Court of Common Pleas for Cuyahoga County and removed to this Court upon petition of defendant. Answer was filed on October 29, 1948.

On May 20, 1949 defendant filed a motion for leave to file an amended answer. A copy of the proposed amended answer is attached to the motion. The changes contained therein relate to a change in the corporate name of defendant and to the addition of a new defense, i. e., that the alleged contract had been modified by agreement of the parties.o

Plaintiff has no objection to the change of the corporate name of defendant in the answer but objects to the remainder of the proposed second defense on the ground that it “fails to state facts sufficient to constitute a proper defense.” Plaintiff has filed no brief or argument in support of his objection.

Rule 15(a), Federal Rules of Civil Procedure, 28 U.S.C.A., provides that after the time limit has expired for amendment of a pleading as a matter of right, a party may amend by leave of court “and leave shall be freely given when justice so requires.”

The allegations of modification of the contract sought to be incorporated as an additional defense does not strike me as insufficient or improper to the extent that the Court should deny to the defendant the opportunity of asserting it.

Since no prejudice will result and justice would seem to require it, the motion of the defendant will be sustained and leave to file amended answer granted.