United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
G&E Real Estate Inc. d/b/a Newmark Grubb Knight Frank
(“Plaintiff”) seeks leave to amend its First
Amended Complaint in response to several of this Court's
decisions and in preparation for trial. Defendants Bruce B.
McNair (“McNair”) and David Roehrenbeck
“Defendants”) oppose on a variety of grounds. Upon
consideration of the briefing,  the relevant legal authorities,
and the record as a whole, the Court shall
GRANT-IN-PART and DENY-IN-PART
Plaintiff's  Motion for Leave to File Second Amended
Complaint. Plaintiff may file a version of its Second Amended
Complaint that omits Counts I-III, VI, and VIII-X, as to
which this Court previously granted summary judgment against
Plaintiff, and omits the specific theories contained in Count
VII that the Court also rejected at summary judgment.
February 26, 2016, the Court summarized the background to
this case when it resolved motions for summary judgment filed
by McNair, Roehrenbeck, and other then-defendants. See
generally Mem. Op., G&E Real Estate, Inc. v. Avison
Young-Washington, D.C., LLC, 168 F.Supp.3d 147, 151-52
(D.D.C. 2016) (G&E I), ECF No. 138. Going forward,
Plaintiff's three remaining claims were limited to breach
of contract claims against McNair and Roehrenbeck (Counts IV
and V, respectively), as well as a narrow version of its
breach of fiduciary duty claim against McNair (Count VII).
See G&E I, 168 F.Supp.3d at 169. Specifically, Count
VII remained viable “as to the claim that McNair
conspired to induce ANSER to terminate its agreement with
Grubb & Ellis.” Id. Relevant proceedings since
the summary-judgment decision have included the denial of
Plaintiff's motion for reconsideration, on August 18,
2016. Mem. Op. and Order, ECF No. 149.
long thereafter, Plaintiff substituted its counsel in this
action. Pl.'s Request for Withdrawal and Substitution of
Counsel, ECF No. 152. Amidst Plaintiff's trial
preparations, new counsel realized that certain emails were
not previously produced to Defendants, but should have been.
See Mem. Op. and Order at 2-3, G&E Real Estate,
Inc. v. Avison Young-Washington, D.C., LLC, 323 F.R.D.
67, 68-69 (D.D.C. 2017) (G&E II), ECF No. 215.
Ultimately, Plaintiff produced “approximately 16, 000
emails from the mailbox of Defendant Bruce McNair (the
‘McNair Emails'), which were stored on a computer
server previously owned and operated by non-party Grubb &
Ellis.” G&E II, 323 F.R.D at 67-68. Defendants
sought sanctions in response, which the Court denied. See
generally G&E II, 323 F.R.D. 67. The Court nevertheless
determined that Defendants were entitled to the reopening of
discovery-which previously closed on February 10, 2015-in
order to mitigate purported prejudices associated with the
belated production. Id. at 71; see also Id.
at 68 (citing Min. Order of Dec. 8,
2014)). The Court denied without prejudice a
number of the parties' other, mostly pretrial motions,
which included an attempt by Plaintiff's new counsel to
amend the First Amended Complaint. Id. Plaintiff
would be permitted to “renew this motion before the
close of the reopened discovery period, ” subject to a
briefing schedule unless the parties agreed to the amendment.
parties indeed sought a briefing schedule, which the Court
issued. Min. Order of Jan. 8, 2018. “In light of the
parties' discovery disagreements, and the Court's
understanding that its decision regarding the Second Amended
Complaint may affect the scope and timeline of reopened
discovery, ” the Court determined that Plaintiff's
present motion should be briefed and decided before reopening
the discovery contemplated by the Court's decision to
deny sanctions. Id.
Court shall consider any further background where relevant to
its evaluation of Plaintiff's renewed attempt to amend
the operative complaint. That motion is now fully briefed.
Federal Rule of Civil Procedure 15(a), captioned
“Amendments Before Trial, ” a party is permitted
to amend its complaint or other pleading “once as a
matter of course within” certain alternative time
periods. Fed.R.Civ.P. 15(a)(1). “In all other cases, a
party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Id. 15(a)(2). Rule 15 makes clear that when the
court's leave is sought, that leave should be
“freely give[n] . . . when justice so requires.”
Id.; see Willoughby v. Potomac Elec. Power
Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) (finding that
leave to amend a complaint is within the court's
discretion and “should be freely given unless there is
a good reason . . . to the contrary”), cert
den., 520 U.S. 1197 (1997); Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (noting
that “it is an abuse of discretion to deny leave to
amend unless there is sufficient reason”).
basis for seeking amendment may be to conform the operative
complaint to the evidence produced during discovery. Under
Rule 15(b), captioned “Amendments During and After
Trial, ” “[a] party may move-at any time,
even after judgment-to amend the pleadings to conform
them to the evidence and to raise an unpleaded issue.”
Fed.R.Civ.P. 15(b)(2) (emphasis added). Bearing in mind the
caption, the Federal Rules contemplate that such a conforming
amendment would be made, if at all, during or after trial
“[w]hen an issue not raised by the pleadings is tried
by the parties' express or implied consent” at
trial. Id. Yet, at least some authority reads the
permissive language italicized above to “permit[ ] the
motion [to amend under Rule 15(b)(2)] to be made throughout
the entire period during which the action is in the district
court.” 6A Charles Alan Wright et al., Federal
Practice and Procedure § 1494 (3d ed. 2010). Even
if a court engaged in pretrial proceedings does not accept
this invitation to formally consider amendment pursuant to
Rule 15(b)(2), this rule provides support for granting leave
to amend under Rule 15(a)(2) where such amendment would
conform the pleadings to the evidence available before trial.
Granting an amendment for this reason would, of course,
remain within the Court's discretion under Rule 15(a)
precedent in this jurisdiction. See, e.g.,
Firestone, 76 F.3d at 1208.
evaluating whether to grant leave to amend [under Rule
15(a)(2)], the Court must consider (1) undue delay; (2)
prejudice to the opposing party; (3) futility of the
amendment; (4) bad faith; and (5) whether the plaintiff has
previously amended the complaint.” Howell v.
Gray, 843 F.Supp.2d 49, 54 (D.D.C. 2012) (citing
Atchinson v. District of Columbia, 73 F.3d 418 (D.C.
Cir. 1996) (quoting Foman v. Davis, 371 U.S. 178,
182 (1962)). “Courts that have found an undue delay in
filing [a proposed amended complaint] have generally
confronted cases in which the movants failed to promptly
allege a claim for which they already possessed
evidence.” United States ex rel. Westrick v. Second
Chance Body Armor, Inc., 301 F.R.D. 5, 9 (D.D.C. 2013).
An amendment would be unduly prejudicial if it
“substantially changes the theory on which the case has
been proceeding and is proposed late enough so that the
opponent would be required to engage in significant new
preparation”; it would “put [the opponent] to
added expense and the burden of a more complicated and
lengthy trial”; or it raises “issues . . . [that]
are remote from the other issues in the case.”
Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C. 2006)
(quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 1487 (2d
ed. 1990)) (internal quotation marks omitted). With respect
to the futility of an amendment, a district court may
properly deny a motion to amend if “the amended
pleading would not survive a motion to dismiss.” In
re Interbank Funding Corp. Sec. Litig., 629 F.3d 213,
218 (D.C. Cir. 2010) (citing, e.g., Foman, 371 U.S.
at 182). “With respect to bad faith, courts generally
consider the length of the delay between the latest pleading
and the amendment sought. However, delay alone is an
insufficient ground to deny the motion unless it prejudices
the opposing party.” Djourabchi, 240 F.R.D. at
13 (citing Wright, Miller & Kane, supra, §
amendments are to be liberally granted, the non-movant bears
the burden of showing why an amendment should not be
allowed.” Abdullah v. Washington, 530
F.Supp.2d 112, 115 (D.D.C. 2008).
following analysis of Plaintiff's Motion is premised on
the Court's assumption that all of Plaintiff's
allegations are supported by evidence that surfaced during
discovery, or in the mishandled tranche of McNair Emails that
was produced to Defendants afterwards. See, e.g.,
Pl.'s Mem. at 5 (alleging that “Defendants . . .
have received all the documents on which the proposed
amendments are based”). Accordingly, Defendants are
purportedly on notice, already, of each of the allegations
that Plaintiff develops in its latest proposed version of the
complaint. At this pretrial stage of proceedings,
Plaintiff's edits should indeed be limited to conforming
the operative complaint to the evidence and the claims that
remain for trial.
the threshold, the Court disposes of Defendants' efforts
to defend against Plaintiff's Motion based on an
incorrect standard. Defendants argue that the Court should
consider Plaintiff's Motion under Rule 16(b), because
that rule purportedly applies to proposed amendments that
fail to comply with a scheduling order. See
Defs.' Opp'n at 7-9 (citing Headfirst Baseball
LLC v. Elwood, 206 F.Supp.3d 148, 152 (D.D.C. 2016)).
The Court need not consider, however, the appropriate
standard for a motion filed after a scheduled deadline. Rule
15(a) is the correct standard for a motion to amend a
complaint that complies with the Court's schedule, as
Plaintiff's Motion does. See Min. Order of ...