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62. Is the court likely to grant the motion?
During discovery, the worker deposed the competitor. One week after discovery closed, the worker moved to amend the complaint to add the competitor as a defendant. The competitor opposed the motion on the ground that the statutory limitations period had expired.
A day before the applicable statutory limitations period expired, a worker filed a federal diversity action for defamation against her former employer, alleging that the employer had falsely and publicly accused her of stealing trade secrets. In describing the events that led to the false accusations, the complaint quoted a statement of a competitor made to the employer about the worker's alleged theft.
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A is incorrect. The closing of discovery does not automatically foreclose the ability to amend a complaint to add a new party. Although the question of whether the competitor will be prejudiced by being made a party at this stage of the case is relevant to whether to allow the amendment, it is not dispositive. Because the amendment does not relate back and the limitations period expired, the claim is futile, and the court is likely to deny the motion on those grounds.
C is incorrect. Although leave to amend should be freely granted, the claim here is futile because it was brought after the applicable limitations period expired. Additionally, the amendment does not relate back under FRCP 15 and is thus futile.
D is incorrect. Although the fact that the allegations against the competitor arise out of the same factual circumstances outlined in the original complaint is a necessary condition, FRCP 15 permits relation back only when the failure to name the party in the original complaint was the result of a mistake of identity, which was not the case here.