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Sectek, Incorporated v. Diamond

United States District Court, E.D. Virginia, Alexandria Division

May 27, 2016



          Michael S. Nachmanoff United States Magistrate Judge

         This matter is before the Court on Plaintiff’s Amended Motion for Leave to File Second Amended Complaint (Dkt. No. 55) and Defendant’s Motion to Amend Counterclaim (Dkt. No. 61). For the reasons that follow, the Court will grant both Motions.

         I. Background

         This case arises out of a contract dispute. Plaintiff SecTek, Incorporated purchased all shares of stock in The J. Diamond Group (“TDG”) from its sole owner, Defendant Jeanette S. Diamond. Plaintiff claims to be entitled under the parties’ stock purchase agreement to indemnification for gross tax receipts assessed against TDG, as well as for attorneys’ fees incurred in defending a lawsuit brought against TDG. Defendant has filed two counterclaims- one alleging breach of the covenant of good faith and fair dealing with regard to the stock purchase agreement, and another alleging wrongful termination. Defendant also filed a lawsuit against Plaintiff in Texas state court, which overlaps in substance with the latter counterclaim.

         Plaintiff’s Motion to Amend seeks to add additional claims, while Defendant’s Motion seeks to abandon her counterclaim for wrongful termination. The Court will address the Motions in turn.

         II. Plaintiff’s Motion

         Plaintiff’s Motion to Amend comes in response to an argument raised by Defendant in her a Motion to Dismiss, or in the Alternative, Motion to Transfer (Dkt. No. 32). In relevant part, Defendant argued that because TDG suffered the losses alleged in Plaintiff’s Complaint, any claim for indemnification lies with TDG-which is itself a party to the stock purchase agreement-rather than with Plaintiff. See Mem. in Supp. of Mot. to Dismiss (Dkt. No. 33) at 2-4. In opposing Defendant’s Motion Plaintiff argued that it is entitled to recover the amount of the indemnification, but noted that some courts have held that the proper recourse for a party in Plaintiff’s position is to seek specific performance of duties owed to a third party-here, TDG. See Mem. in Opp. to Mot. to Dismiss (Dkt. No. 43) at 6 n.2.

         The Court ultimately denied Defendant’s Motion to Dismiss or Transfer. Shortly thereafter, Plaintiff filed the instant Motion, which seeks leave to amend the Complaint to “add specific performance claims to address the prospect that [Defendant] may later . . . re-assert that [Plaintiff] is not a proper party to assert claims for damages under Counts One and Two.” Mem. in Supp. of Mot. to Amend (Dkt. No. 57) at 2.

         Defendant argues that the Motion should be denied because the amendment is futile for two reasons. First, Defendant reiterates its argument that the claims are not brought in the name of the real party in interest. Second, Defendant argues that because “[a]n award of monetary damages would make Plaintiff whole . . . Plaintiff has an adequate remedy at law and cannot seek or be granted specific performance.” Mem. in Opp. to Mot. to Amend (Dkt. No. 59) at 4.

         Federal Rule of Civil Procedure 15(a)(2) dictates a liberal standard under which “leave to amend should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile.” Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). In assessing whether an amendment would be futile, “the merits of the Plaintiff’s claims should not be considered . . . unless the proposed amendment may clearly be seen to be futile because of substantive or procedural considerations.” Fletcher v. Tidewater Builders Ass’n Inc., 216 F.R.D. 584, 588 (E.D. Va. 2003). Here, no such problems present themselves on the face of the proposed amendment, notwithstanding Defendant’s arguments to the contrary.

         First, the Court already rejected Defendant’s argument that Plaintiff’s original claims fail because TDG is the real party in interest in this case. See Order (Dkt. No. 50). Defendant proffers no reason as to why this argument should now make Plaintiff’s new claims so evidently baseless that permitting the amendment would be futile.

         As to Defendant’s second argument-that Plaintiff cannot obtain specific performance because Plaintiff has an adequate remedy at law-Defendant herself previously asserted that Plaintiff is not entitled to monetary damages because any such damages were incurred by TDG, not Plaintiff. See, e.g., Mem. in Supp. of Mot. to Dismiss (Dkt. No. 33) at 2 (“TDG is the actual party who suffered the alleged loss and maintains the putative indemnification claim against Diamond.”). Plaintiff’s proposed amendment assumes that Defendant’s argument ultimately prevails, and provides an alternative means for Plaintiff to obtain relief. See Restatement (Second) of Contracts § 305 (1981) (“If the promisee has no economic interest in the performance . . . the ordinary remedy of damages for breach of contract is an inadequate remedy, since only nominal damages can be recovered. In such cases specific performance is commonly appropriate.”).

         While Defendant may be correct that Plaintiff cannot recover on both its claim for damages and its claim for specific performance under Virginia law, parties are permitted to plead alternative theories of recovery. See Fed. R. Civ. P. 8(a)(3). To plead one theory of recovery does not render an inconsistent alternative theory baseless.

         In short, Defendant has not shown that the proposed amendment would be futile. Because Defendant does not claim that she would be prejudiced by the amendment, or that the amendment is proposed in bad faith, Defendant has not shown any reason why Plaintiff’s Motion ...

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