United States District Court, D. New Hampshire
Gigunda Group, Inc.
Creative Collective Group, et al. Opinion No. 2015 DNH 209
Landya McCfterty Judge
Gigunda Group, Inc. (“Gigunda”) brought suit against Creative Collective Group (“CCG”), Bronwyn Fenton, Selene Fenton, and trustee defendant American Express Company (“American Express”) in Rockingham County Superior Court. CCG and the Fentons removed the case to this court. Gigunda moves for leave to amend its complaint. CCG and the Fentons object.
Gigunda describes itself as “an independent, nationally recognized advisor to large U.S. corporations for providing strategic thinking, creative and brand advisory services.” Am. Compl. (doc. no. 14) at 1. Gigunda alleges that in late 2014, CCG, through its principal, Bronwyn Fenton, approached Gigunda to partner with CCG in developing a pitch for and ultimately executing an American Express marketing campaign (“campaign”).
Gigunda alleges that “[t]hrough a pattern of fraudulent and deceptive representations by [Bronwyn and Selene Fenton over a four-month period, Gigunda was prompted by Fentons/CCG to expend considerable time, resources and effort to ideate and develop creative platforms and corresponding operational plans to help win the business and execute the campaign.” Id. at 1-2. Gigunda further alleges that neither the Fentons nor CCG ever compensated it for the work it performed on the campaign.
Gigunda instituted this action, asserting several contract-based state-law claims, as well as a fraud claim, and a claim under New Hampshire’s Consumer Protection Act, N.H. Rev. Stat. Ann. Ch. 358-A. Gigunda’s original complaint named as defendants CCG, Bronwyn Fenton, Selene Fenton, and American Express as a trustee defendant.
The defendants moved to dismiss certain claims in the complaint. On June 10, 2015, after a hearing on the motion, the court granted the motion in part and dismissed several claims.
In the June 10 order, the court also granted Gigunda’s motion for leave to file an amended complaint, which Gigunda had made at the hearing. Gigunda filed its amended complaint on June 22, 2015, and defendants filed their answer on July 9, 2015. The amended complaint named the same defendants as the original complaint.
Gigunda now moves for leave to file a second amended complaint. Gigunda asserts that the proposed second amended complaint (“second amended complaint”) is different from the first amended complaint in three ways. The second amended complaint: (i) adds “Fenton Group, LLC, ” as a defendant, (ii) adds “Everyday is Tuesday, ” which Gigunda asserts was CCG’s billing vendor for the campaign, as a defendant, and (iii) changes the name of defendant “American Express Company” to “American Express Travel Related Services, Inc.”
Standard of Review
Federal Rule of Civil Procedure 15(a)(2) provides that a party who is no longer able to amend the complaint as of right may amend only with the court’s leave, and that “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Because the proposed amendment seeks to add a new party, the motion is technically governed by Rule 21, which provides that the court may at any time, on just terms, add or drop a party . . . .” Sharp v. Deutsche Bank Nat’l Trust Co., No. 14-cv-369-LM, 2015 WL 4771291, at *3 (D.N.H. Aug. 11, 2015) (internal quotation marks and citations omitted). “However, the same standard of liberality applies under either [Rule 15(a) or 21].” Podkulski v. Doe, No. 11-cv-102-JL, 2013 WL 3475229, at *3 (D.N.H. July 9, 2013) (internal quotation marks and citation omitted).
“[A] district court may deny leave to amend when the request is characterized by undue delay, bad faith, futility, or the absence of due diligence on the movant’s part.” Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013) (internal quotation marks and citations omitted). “In assessing futility, the district court must apply the standard which applies to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).” Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff’s favor, and “determine whether the factual allegations in the plaintiff’s complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). ...