(Eds. Note -- The title took significantly longer to write than the article. You're welcome)
The Foman factors are about as ubiquitous and well known as any test in the law, coming down as they do from a sixty-some year old Supreme Court case, and relating to one of the most common possible motions. A check of Lexis shows a little under 40,000 cites.
As a quick refresher for any of you law students who have been assigned the blog by a particularly devious and brilliant professor, Foman v. Davis, 371 U.S. 178, 182 (1962) held that "In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'"
(Further eds. note -- any professor who actually assigns the blog, let me know and I will refer to you with whatever superlatives you like, or by name, in future posts)
![Pictured, the great and powerful professor [redacted], first of his name, conqueror of ignorance, beloved by his students, what enemies he had are gone from this world](https://bd6f.s3.amazonaws.com/media/images/k-mitch-hodge-BUg2A-epuro-unsplash.max-640x360.webp)
Last week Judge Burke issued a short order on just such a motion to amend that put a bit of extra gloss upon the Foman factors, and in particular, what it means for an amendment to be brought in "bad faith."
The plaintiff in LeFebvre v. Extrabux, Inc., C.A. No 23-167-MN-CJB, D.I. 118 (D. Del. Oct. 7, 2024) timely moved to amend its complaint to add a Lanham Act claim and related accusations. The defendant opposed, arguing that the plaintiff was bringing the amendment in bad faith:
Plaintiff seeks to drag Extrabux into a gross and wasteful sideshow about matters that have no pertinence to the case. Plaintiff’s impertinent and scandalous assertions demonstrate bad faith and they should not be rewarded.
Id., D.I. 95 at 2 (Defendant's Opposition Brief).
Given the extensive redactions to the briefing its difficult to tell what exactly the scandalous and impertinent assertions are (the word repugnant is also used), but the gist of defendant's claim seems to be that amendment is being brought for an improper purpose and thus the bad faith Foman factor should weigh against amendment.
Judge Burke, however, held that the "bad faith" factor referred only to the timing of the motion, and thus found that this factor did not weigh against granting leave to amend:
With regard to Defendant’s assertion that the Motion should be denied on the ground of “bad faith”—essentially because certain of the allegations in the proposed complaint (the “proposed SAC”) are not correct and Plaintiff knows it, —the Court disagrees. As an initial matter, the Court agrees with Plaintiff that this “bad faith” factor is meant to focus on a party’s motives for not amending its pleading sooner, and that is not the nature of Defendant’s challenge here. Moreover, it just isn’t clear enough from the record that the allegations at issue (which admittedly, are pretty marginally relevant to this case) are actually incorrect, let alone that they were placed in the proposed SAC in bad faith.
LeFebvre v. Extrabux, Inc., C.A. No 23-167-MN-CJB, D.I. 118 (D. Del. Oct. 7, 2024) (internal citations omitted).
Ultimately, however, the Court denied the motion for leave to add the Lanham Act claim, finding that the assertions of injury were insufficient (i.e., that amendment would be futile).
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