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Hess v. Fernandez2/25/2005
for costs and reasonable actual attorney fees under Wis. Stat. § 51.61(7)(a) in this case, Fernandez and the Fund never had the opportunity to present their positions on these matters at trial and have them heard by the jury. The parties apparently had an opportunity to brief the issue, take depositions, and retain experts, but this occurred in a post-verdict motion hearing. Being unable to present its position at trial and, thus, heard by the trier of fact may be prejudicial to the party objecting to the motion.
. Furthermore, we are not blind to the unfairness inherent in permitting an amendment at such a late hour. See DRR, L.L.C. v. Sears, Roebuck & Co., 171 F.R.D. 162, 168 (Del. 1997). We agree with Fernandez and the Fund that in order to determine the "interests of justice," we must consider in the balance several more factors. In Peterson, we were able to make our "interests of justice" determination without much difficulty, because the court amended the complaint sua sponte, and did not give the objecting party any time to respond. However, we did not hold that this was the only situation in which a court can find that an amendment is not within the "interests of justice." Thus, when we balance the interests of both parties, as Peterson requires, we agree with Fernandez and the Fund that the circuit court should have considered such factors as undue delay and the motive of the moving party, as well as whether prejudice resulted for the Fund and Fernandez.
. We find support for this approach from federal cases. Under the Federal Rules of Civil Procedure 15(a), the federal counterpart to Wis. Stat. § 802.09(1), federal courts have leave to amend a pleading "when justice so requires." Courts have expanded the interpretation of "interests of justice" beyond prejudice, however, and held that among the adequate reasons for denying leave to amend under such circumstances are "undue delay, bad faith or dilatory motive on the part of the movant. . . ." Foman, 371 U.S. at 182; Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir. 1998) ("we 'have often found untimeliness alone a sufficient reason to deny leave to amend'") (citation omitted); DRR, L.L.C., 171 F.R.D. at 167 ("a movant who offers no adequate explanation for its delay will ordinarily be denied leave to amend"); Zahra v. Town of Southold, 48 F.3d 674, 686 (2d. Cir. 1995) ("It was entirely reasonable for the district court to deny a request to amend a complaint that was filed two and one-half years after the commencement of the action"); Perrian v. O'Grady, 958 F.2d 192, 194 (7th Cir. 1992) ("'the longer the delay, the greater the presumption against granting leave to amend'") (citations omitted). We see no reason not to extend this rationale to cases requiring "interests of justice" determinations under § 802.09(1). Accordingly, we hold that in situations such as this, where the amendment was not brought until after the jury verdict, and four years after the original pleadings were filed, the delay is a significant factor in applying the balancing test.
. It is also argued that Hess had a dilatory motive in moving for amendment of the complaint. Hess did not move to amend the claim for costs and actual attorneys fees until after the jurors determined their award. Hess's motion requested $1,052,426.17, which is considerably more than the sum of $149,985, which was the amount that Hess's attorney had agreed to accept based on the contingent fee agreement.
. Although Hess attempts to refute any allegation of improper motive, the argument seems to be of questionable merit. Hess contends that because a post-verdict motion for attorney fees was allowed in Gorton v. American Cyanamid Co., 194 Wis. 2d 20
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