Sundberg v. TTR Realty, LLC, Case No. 2013 CA 004366B
| Decision Date | 22 October 2015 |
| Docket Number | Case No. 2013 CA 004366B |
| Parties | THORSTEN P. SUNDBERG, M.D., et al., Plaintiffs, v. TTR REALTY, LLC, doing business as TTR SOTHERBY'S INTERNATIONAL REALTY, et al., Defendants. |
| Court | D.C. Superior Court |
This matter is before the court upon a Motion for Leave to Amend filed by Plaintiffs Thorsten P. Sundberg, M.D. and Debra T. Huang. In their motion, the plaintiffs seek to bring an additional claim for fraudulent inducement against Defendants TTR Realty, LLC and Mansour Abu-Rahmeh as well as Intervenor David Winer (a former defendant who was dismissed from this matter on September 26, 2013). In support of their request, the plaintiffs contend that since none of the defendants have filed a responsive pleading as defined by the Superior Court Civil Rules, they still have the right to amend their complaint as a matter of course pursuant to Superior Court Civil Rule 15 (a). Moreover, the plaintiffs further assert that even if the court were to construe this request to amend in accordance with the five-factor test used by the federal courts and the D.C. Court of Appeals, these factors would strongly support the plaintiff being granted leave to amend. Although the plaintiffs acknowledge that their interlocutory appeal in this matter has caused a great degree of delay, they insist that this fact cannot support any argument that they have prosecuted their claims in bad faith or with a dilatory motive.
In opposition, Defendants TTR Realty, LLC and Mansour Abu-Rahmeh counter that once the plaintiffs decided to pursue an interlocutory appeal rather than reassert their claims in a legally sufficient manner, the plaintiffs implicitly agreed to forego their right to reassert their fraud and breach of contract claims should the appeal prove to be unsuccessful. Similarly, the defendants characterize the plaintiffs' request for leave as a waste of the parties' resources and being tremendously inefficient. In this regard, the defendants take the position that the plaintiffs should not be permitted to amend their complaint in order to pursue this alternative theory of fraud that could have been raised before pursuing an appeal, which resulted in the parties incurring additional costs and delays.1
In his opposition to the plaintiffs' motion, Intervenor David Winer argues that res judicata bars the plaintiffs' amendment given that the plaintiff s' proffered fraudulent inducement claim is esoterically the same claim dismissed by the court and arises out of the same transaction. As Intervenor Winer states, "there are no new facts or circumstances alleged in the [a]mended [c]omplaint." Intervenor Winer also regards the plaintiffs' request for leave to amend to be a "mockery of the Rule 54 (b) certification process" since 1) there would be no finality with respect to the claims that the plaintiffs has appealed and 2) the defendants would be forced expend even more resources rather than conserve them as contemplated by Civil Rule 54 (b).2
As a general matter, a decision on a motion seeking leave to amend is a matter within the discretion of the trial court and should be granted freely when justice so requires. Johnson v. Fairfax Vill. Condo. IV Unit Owners Ass'n, 641 A.2d 495, 501 (D.C. 1994) (citations omitted). Courts within this jurisdiction typically apply five factors when considering a motion to amend: "(1) the number of requests to amend; (2) the length of time that the case has been pending; (3)the presence of bad faith or dilatory reasons for the request; (4) the merit of the proffered amended pleading; and (5) any prejudice to the non-moving party." Pannell v. District of Columbia, 829 A.2d 474, 477 (D.C. 2003) ). However, the moving party's request to amend can be denied if sound reasons exist for denying such a request. See id.; Johnson, 641 A.2d at 501.
Before considering the merits of the plaintiffs' underlying motion, the court believes that a short summary of the procedural history surrounding this matter is required. On June 27, 2013, the plaintiffs filed their underlying complaint against the defendants and Intervenor Winer for violations of the D.C. Consumer Protection Procedures Act (Count I), fraudulent misrepresentations, omissions, and inducement (Count II), negligent misrepresentations and omissions (Count III), and breach of the implied covenant of good faith and fair dealing (Count IV) arising from the sale of a condominium unit then-owned by Intervenor Winer. In their complaint, the plaintiffs alleged that these parties failed to advise the plaintiffs about the construction scheduled to occur in the not-so-distant future on a property neighboring the condominium unit purchased by the plaintiffs.
In response to the plaintiffs' complaint, Intervenor Winer filed a motion to dismiss. On September 26, 2013, Judge Judith N. Macaluso granted that motion to dismiss and concluded inter alia that 1) the plaintiffs could not bring claims of fraud and negligent misrepresentation based upon Intervenor Winer's statements and actions that allegedly occurred after the parties executed a sales contract for this condominium unit and 2) to the extent the plaintiffs were bringing these claims in relation to Intervenor Winer's statements and actions prior to this contract being signed, their allegations were too vague to state a prima facie claim. After the plaintiffs' subsequent motion for reconsideration was denied by Judge Macaluso on January 3,2014 and the dismissal of the plaintiffs' fraud and negligent misrepresentation claims was broadened to include the remaining defendants on January 7, 2013, the plaintiffs moved to have this matter stayed pending an interlocutory appeal of Judge Macaluso's rulings pursuant to Civil Rule 54 (b), which this member of the court granted on March 26, 2014. Thereafter, on February 12, 2015, the D.C. Court of Appeals issued its published decision affirming Judge Macaluso's dismissal of the plaintiffs' fraud and negligent misrepresentation claims.
Here, although the first four factors articulated by the Court of Appeals in Pannell weigh in favor of granting the plaintiffs' motion, this member of the court finds that the fifth factor (i.e., prejudice to an opposing party) and the interests of justice would not be served by allowing the plaintiffs to amend their complaint given the special circumstances presented in this matter due to the plaintiffs' interlocutory appeal.
As a matter of public policy, courts disfavor piecemeal litigation. See, e.g., ...
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