United States District Court, E.D. North Carolina, Southern Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
August 1, 2017, defendant Duke Energy Progress, LLC
("Duke Energy") moved to amend its answer and add a
counterclaim for fraud on the Copyright Office against
plaintiff Blackrock Engineers, Inc. ("Blackrock")
[D.E. 56]; Am. Answer [D.E. 56-1] 29-35. On December 14,
2017, the court granted the motion to amend [D.E. 75], and
the amended answer was filed that date. On January 4, 2018,
Blackrock moved to dismiss the fraud counterclaim for failure
to state a claim [D.E. 80] and filed a memorandum in support
[D.E. 81]. On January 25, 2018, Duke Energy responded [D.E.
85]. On February 8, 2018, Blackrock replied [D.E. 88] and
filed a declaration in support [D.E. 89]. On January 10,
2018, defendant AMEC Foster Wheeler Environment and
Infrastructure, Inc. ("AMEC") filed an unopposed
motion to amend its answer to include a new affirmative
defense for fair use [D.E. 82] and filed a memorandum in
support [D.E. 83]. As explained below, the court denies as
untimely Blackrock's motion to dismiss and grants
AMEC's motion to amend its answer.
Blackrock's motion to dismiss Duke Energy's fraud
counterclaim, Rule 15(a)(3) provides: "Unless the court
orders otherwise, any required response to an amended
pleading must be made within the time remaining to respond to
the original pleading or within 14 days after service of the
amended pleading, whichever is later." Fed.R.Civ.P.
15(a)(3). In contrast to Rule 15(a)(3), Rule 12(a)(1)(B)
requires a party to "serve an answer to a counterclaim
or crossclaim within 21 days after being served with the
pleading that states the counterclaim or crossclaim."
Fed.R.Civ.P. 12(a)(1)(B). The 14-day deadline in Rule
15(a)(3), not the 21-day deadline in Rule 12(a)(1)(B),
applies where a party raises a counterclaim in a pleading
amended under Rule 15. See, e.g.. Gen. Mills. Inc. v.
Kraft Foods Global. Inc.. 495 F.3d 1378, 1379 (Fed. Cir.
2007); Meredith v. Weilburg. No.
3:13-CV-277-RJC-WGC, 2014 WL3697111, at *3 (D.Nev. July 23,
2014) (unpublished); H£ Duke & Son. LLC v.
Prism Marketing Corp.. No. 4:1 l-CV-4006-SLD-JAG, 2013
WL 6049806, at *1 (CD. Dl. Nov. 15, 2013) (unpublished).
Here, Blackrock's motion to dismiss was due by December
28, 2017, which was 14 days after Duke Energy amended its
answer to add a fraud counterclaim. See [D.E. 80, 75]; see
also Fed.R.Civ.P. 6. Blackrock, however, did not
file its motion to dismiss the fraud counterclaim until
January 4, 2018. Thus, it is untimely.
opposition to this conclusion, Blackrock argues that the
counterclaim was a "supplemental" pleading instead
of an "amended" pleading under Rule 15 and that it
had 21 days to file the motion to dismiss. See Fed.R.Civ.P.
15(d); [D.E. 88] 1-2. A court may permit supplemental
pleadings which describe "any transaction, occurrence,
or event that happened after the date of the
pleading to be supplemented." Fed.R.Civ.P. 15(d)
(emphasis added); see 6A Wright, Miller & Kane,
Federal Practice & Procedure § 1504 (3d ed.
2010) ("The rule is somewhat narrower in scope than its
predecessor, Equity Rule 34, because it does not expressly
apply to pre-action matters of which a party was ignorant at
the time the original pleading was filed (these matters may
be raised under Rule 15(a)) but embraces only events that
have happened 'after the date of the pleading to be
supplemented.'"); cf Gen. Inv. Co. v. Lake Shore
& M.S. Rv, 260 U.S. 261, 281-82 (1922). Although
Blackrock correctly identifies that responses to supplemental
pleadings are not subject to the 14-day limit in Rule
15(a)(3), the fraud counterclaim contained in Duke
Energy's amended answer is not "truly
'supplemental' [because] it does not relate to events
alleged to have taken place since the prior answer was
filed." Romero v. Barnett. No. DKC 09-2371,
2011 WL 1938147, at *1 n.2 (D. Md. May 20, 2011)
(unpublished); see Am. Answer at 29-35.
Amended and supplemental pleadings differ in two respects.
The former relate to matters that occurred prior to the
filing of the original pleading and entirely replace the
earlier pleading; the latter deal with events subsequent to
the pleading to be altered and represent additions to or
continuations of the earlier pleadings.
6A Wright, Miller & Kane, Federal Practice &
Procedure § 1504 (3d ed. 2010). The transactions,
occurrences, and events which serve as the factual bases for
the fraud counterclaim occurred before Duke Energy filed its
answer on October 7, 2016. See [D.E. 55]; Am. Answer 29-35.
Additionally, the motion to amend, the order granting the
motion to amend, the docket, and Blackrock's memorandum
in support of its motion to dismiss, all style the pleading
in question as an amended answer and not as a
supplemental answer. See [D.E. 56, 56-1, 75, 81 ].
Accordingly, the court denies as untimely Blackrock's
motion to dismiss the fraud counterclaim.
AMEC's motion to amend, a party generally may amend its
pleading once as a matter of course. Fed.R.Civ.P. 15(a)(1).
Further amendments are allowed "only with the opposing
party's written consent or the court's leave, "
although "[t]he court should freely give leave when
justice so requires." Id. 15(a)(2). Leave
should not be granted when the amendment "would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be
futile." Johnson v. Oroweat Foods Co.. 785 F.2d
503, 509 (4th Cir. 1986); see Newport News Holdings Corp.
v. Virtual City Vision. Inc.. 650 F.3d 423, 439 (4th
moves to amend its answer to add an affirmative defense
discovered during this litigation. The motion is unopposed.
Furthermore, there is no evidence that AMEC knew or should
have known of this defense earlier in the litigation or that
its delay in seeking amendment is made in bad faith.
Moreover, the new defense is not futile. Thus, the court
grants AMEC's motion [D.E. 82].
Blackrock's motion to dismiss [D.E. 80] is DENIED as
untimely. AMEC's unopposed motion to ...