Sue L. Robinson: Motion to Amend Not Futile When "Substantive Dispute" Present
Last week, District Judge Sue L. Robinson rejected a party's attempt to stave off a timely motion to amend on the grounds of futility:
"I generally reject such futility arguments if they present substantive disputes, either of the law or of the facts. In other words, if matters are pleaded consistent with Rules 8 and 9(b) of the Federal Rules of Civil Procedure, the substantive merits of allegations made in either an amended complaint or an amended answer should be tested through a substantive motion (pursuant to, e.g., Rules 12(b)(6) or 56), not a procedural one."
In the underlying litigation, the defendant's government-use defense "clearly presents issues of fact and law" that are not appropriate for resolution "in this procedural posture."