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Supermedia LLC v. Baldino's Lock & Key Service, Inc.

United States District Court, Fourth Circuit

August 13, 2013

SUPERMEDIA LLC f/k/a IDEARC MEDIA LLC, Plaintiff,
v.
BALDINO'S LOCK & KEY SERVICE, INC., ET AL., Defendants.

MEMORANDUM AND ORDER

BETH P. GESNER, Magistrate Judge.

The above-referenced case was referred to the undersigned for all proceedings with the consent of the parties, pursuant to 28 U.S.C. ยง 636(c) and Local Rule 301.4. (ECF No. 11.) Pending before the court is defendants' Motion for Leave to File Second Amended Answer and Counterclaim ("Motion") (ECF No. 41), plaintiff's Opposition (ECF No. 45), defendants' Reply (ECF No. 48), plaintiff's Surreply (ECF No. 49), and defendants' Response to plaintiff's Surreply (ECF No. 50).[1] No hearing is deemed necessary. Loc. R. 105.6. For the following reasons, defendants' motion (ECF No. 41) will be denied.

I. BACKGROUND

Defendants Baldino's Lock & Key Service, Inc. and Baldino's Electronic Security, Inc. entered into contracts for directory and advertising services with plaintiff SuperMedia LLC, formerly known as Idearc Media LLC, in 2007, 2008, 2009, and 2010. The parties agree that the contracts are valid, and it is not disputed that Texas law governs. (ECF Nos. 41-1 at 3, 45 at 4.) Plaintiff filed this suit to collect amounts owed under the contracts for services provided from 2008 to 2010, for which defendants have not paid. (ECF No. 1.) In a Memorandum and Order dated February 14, 2013 (ECF No. 34), this court dismissed defendants' eleven affirmative defenses and thirteen counterclaims contained in their First Amended Answer and Counterclaim (ECF No. 16). Defendants have filed a Motion for Leave to File Second Amended Answer and Counterclaim. (ECF No. 41.)

II. DISCUSSION

A. STANDARD OF REVIEW

Federal Rule of Civil Procedure 15 provides that if a party has previously amended a pleading, the 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)(1)-(2). The decision whether to grant leave to amend is within the discretion of the district court, but should only be denied "when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.'" Cuthie v. Fleet Reserve Ass'n , 743 F.Supp.2d 486, 492 (D. Md. 2010) (quoting Edwards v. City of Goldsboro , 178 F.3d 231, 242 (4th Cir. 1999)).

B. MOTION TO AMEND COUNTERLCAIM

Plaintiff argues that defendants' Motion should be denied because defendants unduly delayed in moving to amend, and the amendment would be futile. For the reasons detailed below, although there is no basis to deny the Motion because of undue delay, the Motion will be denied because any proposed amendments to the Counterclaim would be futile, as defendants still fail to state a claim upon which relief can be granted.

1. UNDUE DELAY

First, plaintiff asserts that amendment is barred by undue delay. The Fourth Circuit has held that "[d]elay alone is an insufficient reason to deny leave to amend. Rather, delay must be accompanied by prejudice, bad faith, or futility." See Edwards v. City of Goldsboro , 178 F.3d 231, 242 (4th Cir. 1999). In this case, there has been no undue delay by defendants. After defendants' counterclaims were dismissed (ECF No. 34), defendants promptly retained new counsel, and informed the court of their intention to move for leave to file a Second Amended Answer and Counterclaim. (ECF No. 37.) The undersigned imposed a deadline for defendants to so move (ECF No. 39), and defendants met that deadline (ECF Nos. 40 and 41). There has been no delay, and in any case, delay alone is an insufficient reason to deny leave to amend. Edwards , 178 F.3d at 242. Thus, plaintiff's first argument, that amendment is barred by undue delay, is rejected.

2. FUTILITY

Plaintiff's second argument is that leave to amend the Counterclaim should be denied on the grounds of futility. Amendment is futile if the claims as amended would not survive a motion to dismiss for failure to state a claim upon which relief can be granted, made pursuant to Fed.R.Civ.P. 12(b)(6). Perkins v. United States , 55 F.3d 910, 917 (4th Cir. 1995) (affirming denial of motion for leave to amend "because the proposed amendments could not withstand a motion to dismiss"). Therefore, the "plausibility" standard for pleading, articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), applies here. Under that standard, accepting all defendants' factual allegations as true, a claim must "plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 664, 678. "[A] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id . at 678 (quoting Twombly , 550 U.S. at 555). Rather, the claim must contain sufficient facts to advance defendants' claim "across the line from conceivable to plausible." Twombly , 550 U.S. at 570. For the following reasons, each of defendants' proposed amendments is futile.

In their proposed Second Amended Counterclaim, defendants assert claims for negligence (Count II) and breach of contract (Count III). The undersigned previously dismissed defendants' claims of negligent misrepresentation and their contract-based counterclaims. (ECF No. 34.) Defendants have now proposed to amend their Counterclaim to include allegations that plaintiff "unilaterally flood[ed] the locksmith section of its print directories and superpages.com with false information that was designed to steal business of Baldino's and other legitimate locksmiths." (ECF No. 41-2 at 8.) Defendants allege that hundreds of unlicensed locksmiths did not pay plaintiff for listing services, but rather plaintiff obtained the information from telephone companies and published it, in print and online, in knowing participation in a scam by the "phony" locksmiths to extort customers. (ECF No. 41-2 at 4-5.) Even taking into account the new factual allegations now proffered by defendants, their claim may be simplified into an ...


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