noting that the non-moving party has “a heavier burden than merely claiming prejudice, it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the [Plaintiffs] amendments been timely.”
How later courts described this case
- noting that the non-moving party has “a heavier burden than merely claiming prejudice, it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the [Plaintiffs] amendments been timely.”
- finding no Sixth Amendment error under Olano where enhancement for possession of stolen firearm failed to increase sen tence beyond maximum authorized by facts defendant admitted
- "We do not believe delay alone is a sufficient measure of prejudice[;] the element of delay is pertinent only to the extent that it combines with some extrinsic occurrence which brings about actual and significant prejudice to the opponent." (internal quotation omitted)
- cited with favor in First Nat. Bank of Boston v. Siberdick, 146 Vt. 209, 2011 (1985); Cuffy v. Getty Refining & Marketing Co., 648 F.Supp. 802, 806 (D. Del. 1986
Written by the judges who cited it.
The opinion
ALDISERT, Circuit Judge
(dissenting).
When this cause is remanded to the district court for a second trial on the merits, it will be for the sole reason that the trial judge abused his discretion. The trial judge will be hard put to understand where along the line he was guilty of this abuse. And so will I.
The action was an unsophisticated one brought by the plaintiff against the Town of Lewes for trespassing upon her land. The Town answered that it had acquired title to the land by adverse possession or, in the alternative, that no trespass had occurred because its presence on the land was for the purpose of improving the property.
At the pre-trial conference, however, the Town clearly indicated that it intended to pursue “simply one defense, and that is adverse possession.” It was in this posture that the issue was joined for trial and evidence received. Notwithstanding this unequivocal election of one defense by the Town, the trial judge twice invited it to re-adopt its alternative line of defense during the trial, solicitously offering his observation that “it ought to be considered.” *301 On both occasions, however, counsel for the Town remained silent, in direct contrast to the plaintiff’s objection to the relevancy of the defense.
Finally, after the close of all the testimony, counsel for the Town announced his intention to “ask instruction” on the thrice-rejected improvements defense, making formal application “to amend the answer to conform to the evidence.” The trial judge denied the request, stating in his later opinion denying a new trial that the defendant’s conduct at pretrial and during the trial was “tantamount to an abandonment of the statutory defense which defendants had initially pleaded.”
On such a record, I find little room for serious consideration of the Town’s claim that the trial judge abused his discretion. If there was any prejudice to the Town in the trial, it came from its own counsel table and not the bench. And neither this court nor the district court should interfere with the consequences of such a deliberate choice of trial strategy.
It is for this reason that I find it unnecessary to accord undue importance to the Town’s strident argument that what will turn this case is whether the statutory law of Delaware was applicable under the testimony adduced at trial. After a scholarly discussion of this subject and the desirability of a liberal application of Federal Rule 15 (b), the majority conclude that “we are not deciding whether the evidence presented by the Town was sufficient to meet the requirements” of the statute, but only that the statute was relevant, and the “Town should have been given the opportunity to plead” it.
There is a short answer to all this. The Town was given the opportunity to plead it. The Town did plead it. The Town then changed its mind, and took its chances throughout the trial.
The sole issue presented to this court is whether the trial judge abused his discretion in refusing to permit the Town to change its mind a second time. I do not consider such action an abuse of discretion. Gallon v. Lloyd-Thomas Co., 264 F.2d 821 , 77 A.L.R.2d 417 (8 Cir. 1959); Hall v. National Supply Co., 270 F.2d 379 (5 Cir. 1959); Wilkins v. Kendle, 287 F.2d 201 (8 Cir. 1961).
Accordingly, I dissent and would affirm the judgment of the district court.