Fustok v. Conticommodity Services, Inc.

103 F.R.D. 601, 40 Fed. R. Serv. 2d 1038, 1984 U.S. Dist. LEXIS 21502
District Court, S.D. New York·Decided December 5, 1984·No. No. 82 Civ. 1538(MEL)·Published·Cited by 9 cases

Opinion

LASKER, District Judge.

Plaintiff moves pursuant to Federal Rule of Civil Procedure 15 to amend his complaint to add additional claims and defendants. The existing and proposed defendants oppose the motion on the grounds that the addition of new claims and parties would cause them undue delay and prejudice. After careful consideration of the oral and written arguments, the motion is granted in part as to the addition of the proposed defendants and claims numbered one through twenty three, and denied in part as to the twenty fourth claim.

This case has already been the subject of much motion and discovery practice—which is not surprising given that plaintiff Mahmoud Fustok seeks to recover from the defendants more than $50 million in damages allegedly arising out of the collapse of the silver market in the Spring of 1980. See generally Fustok v. ContiCommodity Services, Inc., 577 F.Supp. 852, 853-55 (S.D.N.Y.1984). In an earlier opinion, defendants’ summary judgment motion to dismiss the complaint’s allegations of unauthorized trading of Fustok’s silver account was denied because of the presence of triable issues of fact. See id. at 855-59. By the present motion Fustok seeks to amend his complaint, which asserts only unauthorized trading and conversion claims, to allege various acts of fraud and negligence, breaches of fiduciary duty, and violations of state and federal laws by the defendants and the proposed defendants arising out of transactions affecting plaintiff’s silver account between November or December of 1979 and March of 1980.

Fustok contends that he learned of the transactions that form the basis for the additional causes of action and for naming the three proposed defendants only after he had obtained relevant documents and depositions through discovery. He argues, inter alia, that this newly discovered evidence only now establishes the necessary elements of particularity needed to support the proposed fraud claims, see FED.R. CIV.P. 9(b), and the liability of proposed defendants Continental Grain Co. (“Conti Grain”), Conti-Capital Management, Inc. (“Conti Management”), and Walter M. Goldschmidt.

[603]*603Defendants and proposed defendants assert that granting this motion will produce undue prejudice and delay given the “massive” record that has already been compiled in this case. They note, with what can probably be described as a sense of horror, the statistics describing the large volume of discovery that has already taken place. The record now contains “41 depositions taken over a total of 66 days, comprising 11,000 pages of transcripts and over 1100 exhibits. More than 30,000 pages of documents have been produced____ The parties have filed at least 18 motions, 30 affidavits and 27 briefs. The record contains over 20 orders and stipulations.” Affidavit of Mark H. Alcott, 112, filed October 17, 1984.

Proposed and existing defendants argue that the proposed amended complaint includes new theories of liability, will create the need for new rounds of discovery relating to the new claims and will force the proposed defendants to devote much effort to the process of assimilating the existing record. They also argue that the proposed defendants will be prejudiced because the interests of Conti Grain, Conti Management, and Goldschmidt were not represented as parties at the depositions which have already taken place or in connection with prior discovery. Indeed the proposed defendants represented at oral argument that they would prefer to litigate against Fustok in a separate action in which they would have a complete say in the development of the record.

Defendants further argue that the motion should be denied because the proposed claims are time-barred by the applicable statute of limitations and do not relate back to the original complaint. They add that recent holdings by the court of appeals for this circuit make defective the proposed RICO claim.

Plaintiff responds that the proposed or existing defendants will not be prejudiced by the new causes of action because, contrary to defendants’ assertion that this case has focused on the issue of unauthorized trading of the Fustok account, the proposed claims have always been lurking in the background according to the plaintiff. The defendants should not have to conduct significant additional discovery because they already know the facts necessary to prepare their case. As to the proposed defendants, plaintiff contends that they will not be prejudiced because they still have the opportunity to participate in the cross-examination of the principal defense witnesses during their depositions since discovery disputes have delayed their completion. Fustok points out that the only completed depositions involve “back office” employees of the defendants who were examined for the purpose of allowing plaintiff to familiarize himself with defendants’ business.

Plaintiff also disputes defendants’ assertions of undue delay by noting that none of them has stated what discovery would have to be reopened; that he has provided full discovery to the defendants; and that the proposed defendants would only have to conduct minimal discovery given their close corporate and employment relationships with the existing defendants. On the other hand, Fustok asserts that forcing him to bring another action in order to pursue the added claims against the same parties would be unduly burdensome. Finally, plaintiff contends that none of the proposed claims are time-barred because they all fall within the six year statute of limitations period for fraud claims and because they do in fact relate back to the original complaint

* * * * * *

Federal Rule of Civil Procedure 15(a) provides that “leave shall be freely given [to amend pleadings] when justice so requires.” Reasons for denying a motion to amend include undue delay, bad faith, and the resulting prejudice to the opposing party. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Mere delay alone, however, does not warrant such a denial. “[A]bsent a showing of bad faith or undue prejudice, [it] does not provide a basis for a district court to deny the right to amend.” State Teachers Re[604]*604tirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981). As a general proposition, amendment of pleadings are favored in order “to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99,103, 2 L.Ed.2d 80 (1957); Holiday Publishing Co. v. Gregg, 330 F.Supp. 1326, 1328 (S.D.N.Y.1971).

The state of affairs presented by this motion does not lend itself to a simple solution. Permitting the requested amendments will clearly add to what is already a large case. On the other hand, denying plaintiffs request would likely lead to another related litigation of equally grand proportions. All things considered, we conclude that the delay or prejudice which the proposed or existing defendants might suffer if the complaint is amended is not “undue” so as to warrant the motion’s denial.

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Fustok v. Conticommodity Services, Inc., 103 F.R.D. 601, 40 Fed. R. Serv. 2d 1038, 1984 U.S. Dist. LEXIS 21502 (S.D.N.Y. 1984).

103 F.R.D. 601 (Fustok v. Conticommodity Services, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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