Becker v. Computer Sciences Corp.

• Decision Date: 22 June 1982
• Docket Number: Civ. A. No. H-80-1676.
• Parties: Bryan C. BECKER, Plaintiff, v. COMPUTER SCIENCES CORP., Defendant.
• Court: U.S. District Court — Southern District of Texas

541 F. Supp. 694

Bryan C. BECKER, Plaintiff, v. COMPUTER SCIENCES CORP., Defendant.

Civ. A. No. H-80-1676.

United States District Court, S. D. Texas, Houston Division.

June 22, 1982.

COPYRIGHT MATERIAL OMITTED

Robert L. Pendergraft, Pendergraft & Associates, Houston, Tex., for plaintiff.

Donald J. Horton, Andrews & Kurth, Houston, Tex., for defendant.

ORDER

CARL O. BUE, Jr., District Judge.

Pending before the Court is defendant's motion for leave to file amended answer and counterclaim. Through its motion, defendant seeks to inject into this lawsuit a counterclaim predicated upon a California statute which provides a cause of action for the unauthorized eavesdropping on confidential communications by an electronic amplifying or recording device. Not surprisingly, plaintiff is opposed to defendant's motion.

On April 12, 1982 the Court held a conference in chambers with counsel for both parties in attendance. Following the presentation of the arguments of counsel, the Court took defendant's motion under advisement. After careful and judicious consideration of the arguments of counsel and their briefs in light of the relevant law, the Court hereby denies defendant's motion for the reasons set forth herein.

I. Introduction

A brief recapitulation of the factual background of this litigation may be helpful in placing the issues under consideration in their proper context. On approximately May 16, 1979, plaintiff was hired by defendant for the position of Account Manager in the Houston office of defendant's Information Network Division. In his position as Account Manager, plaintiff was responsible for soliciting and selling the services and products of defendant to a designated clientele. In exchange for such services, plaintiff received compensation, the amount of such compensation was allegedly governed in part by an incentive compensation plan. Apparently, plaintiff performed such services in the Greater Houston Metropolitan area.

In January, 1980, plaintiff was discharged from his employment by defendant. Plaintiff, obviously of the belief that his termination was wrongful, filed the instant lawsuit against defendant on July 28, 1980, alleging basically that defendant breached a contract of employment with plaintiff.

Shortly after the commencement of this cause, the parties engaged in discovery. During plaintiff's oral deposition which was begun on December 1, 1980, defendant's counsel discovered the existence of numerous tape recordings plaintiff had made surreptitiously of telephone conversations between plaintiff and defendant's employees. At the time these conversations were recorded, plaintiff was located in Texas while defendant's employees were in California.

On November 30, 1981, defendant filed the motion for leave to amend now before the Court.

II. Amendment

Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to file amended pleadings "shall be given when justice so requires." "Determining when justice requires permission to amend rests within the sound discretion of the trial court." Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1024 (5th Cir. 1981). See also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Paschal v. Florida Public Employees Relations Comm'n, 666 F.2d 1381, 1384 (5th Cir. 1982) (per curiam); National Distillers and Chem. Corp. v. Brad's Mach. Prods., Inc., 666 F.2d 492, 495 (11th Cir. 1982). Generally, absent undue delay, bad faith, failure to cure deficiencies in amendments previously allowed, futility of amendment or, most importantly, undue prejudice to the party opposing the amendment, leave to amend should be granted. Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. at 230; Lewis v. Curtis, 671 F.2d 779, 783 (3rd Cir. 1982); Paschal v. Florida Public Employees Relations Comm'n, supra at 1384; National Distillers and Chem. Corp. v. Brad's Mach. Prods., Inc., supra, at 495; Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597-98 (5th Cir. 1981); Daves v. Payless Cashways, Inc., supra, at 1024. See generally 3 J. Moore, Moore's Federal Practice ¶ 15.084 (2d ed. 1981), 6 C. Wright & A. Miller, Federal Practice and Procedure § 1487 (1971).

A. Undue Delay

In opposition to defendant's motion, plaintiff asserts first that defendant has unduly delayed in the filing of its motion. Plaintiff contends that defendant was aware of the existence of the tapes almost one year prior to the filing of defendant's motion for leave to amend. Plaintiff contends also that to allow such amendment at this time would delay the commencement of the trial of this cause and increase the time it will take to try this case. This case is presently set for trial on the Court's May/June docket.

Contrary to the unyielding position taken by plaintiff, defendant contends that although its counsel was given copies of the tapes of the telephonic conversations recorded by plaintiff at plaintiff's oral deposition in December, 1980, it did not unduly delay in filing the instant motion. Defendant alleges that as the tapes it obtained from plaintiff were of poor quality, were difficult to duplicate, transcribe, and were very lengthy, it took until November, 1981 to complete the task of transcribing the tapes. Accordingly, defendant contends that it was not until the tapes of these conversations were transcribed that it had sufficient facts upon which to base its counterclaim. In addition, defendant attributes the delay in filing its motion for leave to amend to the time its counsel spent in researching the legal issues raised by the proposed amendment. More importantly, defendant asserts finally that plaintiff has not been prejudiced as a result of the undue delay, if any, in the filing of the motion for leave to amend.

It has been often said that mere delay is not a reason in and of itself to deny leave to amend. There must be some prejudice which would result if leave were granted. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 802-03, 28 L.Ed.2d 77 (1971); Hurn v. Retirement Fund Trust of the Plumbing, Heating and Piping Industry of Southern California, 648 F.2d 1252, 1254-55 (9th Cir. 1981); Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.) cert. dismissed, 448 U.S. 911, 101 S.Ct. 25, 65 L.Ed.2d 1141 (1980); Hayes v. New England Millwork Distrib., Inc., 602 F.2d 15, 19 (1st Cir. 1979); Cornell & Co. v. Occupational Safety and Health Review Comm'n, 573 F.2d 820 (3rd Cir. 1978); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973); International Bank v. Price Waterhouse & Co., 85 F.R.D. 140, 142 (S.D.N.Y.1980). See also Dussouy v. Gulf Coast Inv. Corp., supra, at 598.

After reviewing the facts of the instant cause, the Court concludes that defendant's delay in filing its motion for leave to amend, aside from the Court's failure to detect any prejudice to plaintiff, is not unduly lengthy. The defendant's desire to add a counterclaim was not raised at the eleventh hour but was filed within one year after the discovery of the tapes and five months before the trial setting of this cause. Although the Court finds that the delay in filing the motion cannot be attributed in toto to the difficulty defendant had in transcribing the tapes and in researching the underlying law which the Court concludes is indeed novel, the unaccounted for delay is simply insufficient to support a finding that such delay precludes amendment.

B. Prejudice

"The trial court's discretion under Rule 15 ... must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is `the touchstone for the denial of leave to amend.'" Heyl & Patterson Int'l, Inc. v. F. D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3rd Cir. 1981) (citations omitted), cert. denied, ___ U.S. ___, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). See also Zenith Radio Corp. v. Hazeltine Research, Inc., supra, 401 U.S. at 330-31, 91 S.Ct. at 802. See generally 3 J. Moore, Moore's Federal Practice ¶ 15.084 (2d ed. 1948); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1487 (1971).

Plaintiff argues that allowance of the amendment will cause him prejudice. Specifically, plaintiff avows that because of the time his attorneys have spent in researching the complex issues raised by defendant's motion, it has been more difficult to prepare this case for trial. Although it is not clearly stated, apparently plaintiff complains also that the amendment will complicate the trial of this case.

Although the Court admittedly does not possess the same degree of familiarity with this case as enjoyed by counsel, the Court has reviewed the issues which will be injected into this suit by reason of the amendment and can find no merit to plaintiff's claim of prejudice on the grounds heretofore stated. The Court does not believe that the counterclaim will complicate the trial of this case to a degree which would support the preclusion of the amendment. Nor does the fact that plaintiff's counsel has had to expend time in researching the issues raised by defendant's motion justification for denial of defendant's motion under the circumstances of the instant cause. If such were the case, a party could prevent his opponent from amending his pleadings by always raising the argument being raised by plaintiff here.

In further support of his claim that he will be prejudiced by the amendment, plaintiff contends also that the jury might be contaminated if defendant was allowed to argue that plaintiff allegedly may have violated the criminal laws of the State of California. As pointed out by defendant, however, plaintiff can protect himself from such an argument through a motion in limine. Accordingly, the Court finds no merit to plaintiff's argument.

Finally, plaintiff argues in his briefs that another type of prejudice will result if the amendment is permitted, prejudice to the trial of this case. Once again, plaintiff asserts that the issue of...