No: 05-2657 ROONEY RHYMER; HELGA RHYMER v. PHILIP MORRIS, INC.; BRITISH AMERICAN TOBACCO PLC Rooney Rhymer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-2657
ROONEY RHYMER; HELGA RHYMER
v.
PHILIP MORRIS, INC.; BRITISH AMERICAN TOBACCO PLC
Rooney Rhymer,
Appellant
Appeal from the United States District Court
for the Virgin Islands
(V. I. No. 02-cv-00020)
Argued: December 8, 2005
Before: SCIRICA, Chief Judge, McKEE, Circuit Judge,
and NYGAARD, Senior Circuit Judge
(Opinion Filed: January 31, 2006)
GEORGE H. HODGE, JR., ESQ. (Argued)
P.O. Box 803
St. Thomas, Virgin Islands 00804
Attorney for Appellant
ANTHONY UPSHAW, ESQ.
Adorno & Yoss, LLP
2525 Ponce de Leon Blvd.
Suite 400
Miami, Florida 33134
JOHN ZEBEDEE, ESQ.
Hymes & Zedebee PC
Emancipation Garden Station No. 10
Norre Garde, Third Floor

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P.O. Box 990
Charlotte Amalie
St. Thomas, Virgin Islands 00804
Attorneys for Appellee, British American
Tobacco, PLC
SCOTT E. HERSHMAN, ESQ.
STEPHEN R. BLACKLOCKS, ESQ. (Argued)
Hunton & Williams LLP
200 Park Avenue
New York, New York 101166
HENRY L. FEUERZEIG, ESQ.
CHAD C. MESSIER, ESQ.
Dudley, Topper & Feuerzeig, LLP
Law House, 1A Frederiksburg Grade
St. Thomas, Virgin Islands 00802
Attorneys for Appellee, Philip Morris USA Inc.
OPINION
McKEE, Circuit Judge.
Rooney Rhymer appeals the district court’s denial of his motion to file a second
amended complaint. For the reasons that follow, we will affirm.
I.
Since we write primarily for the parties we need not reiterate the factual or
procedural background of this case except insofar as may be helpful to our brief
discussion.
Under the Federal Rules of Civil Procedure, a plaintiff is entitled to amend his
complaint once; courts may grant subsequent amendments "when justice so requires.”
Fed. R. Civ. P. 15(a). Although the Rule states that leave to amend should be "freely

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given," a district court has discretion to deny a request to amend if it is apparent from the
record that (1) the moving party has demonstrated undue delay, bad faith or dilatory
motives, (2) the amendment would be futile, or (3) the amendment would prejudice the
other party. See, e.g. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Rhymer makes two arguments as to why the district court should have allowed a
second amendment. First, he states:
The court should have permitted the second amended
complaint in view of the fact that plaintiff had relied in good
faith on a theory of law in Cipollone [v. Liggett Group, Inc.,
668 F. Supp. 408 (D.N.J. 1987)], which is a widely
recognized case in the Third Circuit. It was later affirmed by
the U.S. Supreme Court. However, after the [summary
judgment] motion hearing in the instant case plaintiff revisited
Cipollone and realized for the first time that the jury did not
award plaintiff damages on the misrepresentation/conspiracy
claim. Thus that Noerr-Pennington exception recognized on
in Cipollone at the trial court level had not been an issue on
appeal.
Rhymer’s Br. at 14-15. He further explains that, when he “became aware that the Noerr-
Pennington doctrine recognized by the trial court in Cipollone was not a generally
accepted principle of law, he immediately moved to amend the pleadings in the midst of
argument before the court.” Id. at 16.
Based on these statements, Rhymer’s explanation for his delay in seeking to amend

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his complaint is that he did not know that one of his claims was legally defective until that
was pointed out in the course of argument on defendants’ summary judgment motion. In
light of this explanation, we cannot conclude that the district court abused its discretion in
denying Rhymer’s motion to amend. See Cureton v. Nat’l Collegiate Athletic Assoc., 252
F.3d 267, 273 (2001) (“the question of undue delay requires that we focus on the
movant’s reasons for not amending sooner.”). Indeed, as the Sixth Circuit stated in
Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir. 1974), where the
court affirmed the district court’s denial of plaintiff’s motion to amend, “[a]
misconception of the law is not an excuse for the late presentation of an alternative theory
of recovery.” Were the law otherwise, “[a] losing party can always argue in retrospect
that he misconceived the law.” Id.; see also Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d
Cir. 1976) (district court did not abuse discretion in denying leave to amend when only
excuse for delay was ignorance of the law).
While it is hard to imagine Phillip Morris and B&W facing extreme prejudice in
this simple, single plaintiff case, we can not ignore that the case had been pending for
over two and one half years before Rhymer moved to amend the complaint a second time.
See Cureton, 252 F.3d at 273 (while the mere passage of time does not require a motion
to amend a complaint to be denied on grounds of undue delay, delay may become undue
when a movant has had previous opportunities to amend a complaint.). Moreover,
Rhymer’s motion came 16 months after the date set by the court to file amendments to

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Moreover, we believe that the district court concluded, that Rhymer’s proposed1
amended complaint would be futile. It said:
Even if I were to allow. . . the plaintiff to amend to talk about an express
warranty, there would be good taste and so forth, that’s such a subjective
issue that I’m not sure at all that it would amount to an express warranty,
that even if it was an express warranty, it would be a kind of actionable
warranty.
(JA74).
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pleadings. In addition, most discovery had been completed for at least two months by the
time Rhymer moved to amend.
Rhymer’s second argument is that, “[a]t no time did the court indicate that plaintiff
acted with undue delay, in bad faith; had any dilatory motive; nor found prejudice to
defendants. Neither did the court indicate futility in allowing the amendment.” Rhymer’s
Br. at 16-17. However, “[n]ot providing a justification for a denial of leave to amend . . .
does not automatically constitute an abuse of discretion as long as the court’s rationale is
readily apparent from the record on appeal.” Lake v. Arnold, 232 F.3d 360, 373-74 (3d
Cir. 2000).
Although the district court’s reasons for its denial may not have been stated as
artfully as possible, its rationale is readily apparent from the record. The court explained
that Rhymer’s motion “comes too late in the proceedings,” and the record demonstrates
that the case was pending for a substantial amount of time, that a year had passed since
the deadline for amending complaints, and that discovery was close to being complete.1

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This time line, combined with Rhymer’s stated reasons for asking to amend his complaint
when he did, leads us to conclude that the trial court did not abuse its discretion in
denying the motion to file a second amended complaint.
II. CONCLUSION
For the above reasons, we will affirm the district court’s denial of Rhymer’s
motion to file a second amended complaint.

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