This case is before the court on two motions from the Defendants and Third-Party Plaintiffs American Cold Storage, Inc. and American Cold Storage North America, LP (collectively "ACS"): first, a motion to alter or amend this court's Order granting summary judgment to the Third-Party Defendant Abilene Texas Foods' ("Abilene") pursuant to Fed. R. Civ. P. 59(e) and 54(b) (DN 89); and second, ACS's motion to file its first amended third-party complaint against Abilene pursuant to Fed. R. Civ. P. 15 (DN 88).
These motions will be granted for the reasons stated herein.
In August 2010, ACS filed a third-party complaint against Abilene seeking indemnification or contribution in the event that ACS was found liable to Ronald A. Chisholm ("Chisholm"). In February 2012, Abilene filed a motion for summary judgment against ACS, arguing that ACS's third-party complaint should be dismissed because common law indemnification and contribution (apportionment) under Kentucky law apply only as between joint tortfeasors. Abilene argued, and this court agreed, that all of the claims asserted against ACS by Chisholm were contractual in nature. Accordingly we found that ACS could not assert claims for indemnification and contribution (apportionment) against Abilene, and granted Abilene's motion for summary judgment (DN 86).
We entered an Order in October 2012 (DN 87) which stated: "[t]he Third-Party Complaint filed by American Cold Storage Inc. and American Cold Storage North America, LP (DN 21) is dismissed with prejudice."
ACS has asked that we alter the Order to dismiss ACS without prejudice, or in the alternative declare that the Order is final so ACS can attempt an interlocutory appeal (DN 89). ACS also asks to amend their third-party complaint to assert theories that were not asserted in the original third-party complaint (DN 88). The original third-party complaint was based only on indemnity and contribution remedies, which were not appropriate because the only claims asserted by Chisholm against ACS sounded in contract, not tort. Thus, the tort-based remedies ACS requested in were not available.
ACS requests to retool its claims against Abilene in its amended third-party complaint and assert claims for tortious interference with contractual relations, trespass to chattels, and unjust enrichment against Abilene. The factors ACS articulates show that amendment is appropriate under Rule 59(e) and Rule 15.
Regarding ACS's motion to alter or amend this court's October 2012 Order (DN 87), "[a] party may not seek to amend their complaint without first moving to alter, set aside or vacate judgment pursuant to  Rule 59(e) . . . [w]here a timely motion to amend is filed under Rule 59(e), Rule 15 and Rule 59 inquiries turn on the same factors." Benzon v. Morgan Stanley Distribs., 420 F.3d 598, 613 (6th Cir. 2005) (citing Morse v. McWhorter, 290 F. 3d 795, 799 (6th Cir. 2002)). Motions to alter or amend pursuant to Fed. R. Civ. P. 59(e) are "extraordinary" in nature and should be "sparingly granted." Phila. Indem. Ins. Co. v. Youth Alive, Inc., 857 F. Supp. 2d 647, 655 (W.D. Ky. 2011) (citing Buckner v. Kentucky, 2011 WL 1304747 at *1 (E.D. Ky. Apr. 5, 2011)). The court may grant a Rule 59(e) motion in limited circumstances: "only if there is: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice." Henderson v. Walled Lake Consol. Schools, 469 F. 3d 479, 496 (6th Cir. 2006) (citing Intera Corp. v. Henderson, 428 F. 3d 605, 620 (6th Cir. 2005)). Rule 59(e) does not provide parties a forum to present new arguments or theories that, with proper diligence, could have been asserted prior to the judgment being issued." Youth Alive, 857 F. Supp. 2d at 656 (W.D. Ky. 2011) (citing Howard v. U.S., 533 F.3d 472, 475 (6th Cir. 2008)).
Fed. R. Civ. P. 15 states that "leave [to amend] shall be freely given when justice so requires." Denial may be appropriate, however, where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Benzon, 420 F.3d at 613 (citing Morse, 290 F. 3d at 800)).
Here, ACS argues that Abilene will not be unduly prejudiced if the court alters the October 2012 Order such that ACS is dismissed without prejudice and given leave to file its first amended third-party complaint (DN 89-1). ACS contends (1) that its amended third-party complaint raises no new factual allegations against Abilene because the amended pleading relies on allegations previously asserted against Abilene in Chisholm's cross-claim against Abilene; and (2) that Abilene does not deny the factual basis for ACS's claims-the basis being that Abilene requested the release of Chisholm's goods from ACS. Thus, ACS contends that Abilene will not suffer surprise or substantial prejudice. ACS also contends (3) that there will be no need for additional discovery; (4) that the remedy it seeks in its amended third-party complaint is identical to the remedy sought in its original Complaint; (5) that the claims in ACS's amended third-party complaint are not futile; and (6) that leave to amend is appropriate under Fed. R. Civ. P. 15 because ACS has not previously requested such leave (DN 89-1).
In response, Abilene argues that ACS's motion to alter is improper because ACS fails to articulate specific grounds to support a Rule 59(e) motion (DN 90). Abilene contends that ACS's motion to alter is simply a means to open the door for ACS to seek leave to file an amended third-party complaint. See Benzon, 420 F.3d at 613.
I. ACS's Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P 59(e)
ACS relies on the Fed. R. Civ. P. 59(e) "manifest injustice" standard-as ACS does not allege a clear error of law, newly discovered evidence, or an intervening change in controlling law. See Henderson, 469 F. 3d at 496; Intera, 428 F. 3d at 620. In the "post-judgment context" the court "must also take into consideration the competing interest of protecting the 'finality of judgments and the expeditious termination of litigation.'" Benzon, 420 F.3d at 613; (quoting Morse, 290 F. 3d at 613)). "[T]he court must be ...