Plaintiff's near two-year delay in pursuing complaint against Aqua Pennsylvania leads to denial of its amendment

By Nicholas Malfitano | Jul 6, 2018

PHILADELPHIA – A federal appellate court upheld the denial of amendment to a plaintiff’s complaint against the Aqua Pennsylvania water company, charging the lack of specificity in his allegations and undue delay of nearly two years in filing for said amendment, led to that very same denial.

Per a ruling dated June 20, U.S. Court of Appeals for the Third Circuit judges L. Felipe Restrepo, Stephanos Bibas and Richard L. Nygaard upheld a ruling from the U.S. District Court for the Eastern District of Pennsylvania, in favor of defendants Aqua Pennsylvania and John Kennedy, and against plaintiff Frank Nellom.

“In March 2016, Nellom filed a complaint in the District Court. The complaint was vague and lacked critical information. Nellom named as defendants Aqua Pennsylvania, Inc., and John Kennedy, and referred to a proceeding before the Pennsylvania Public Utility Commission, but he did not clearly identify the defendants’ alleged wrongdoing or explain the basis for the District Court’s jurisdiction,” the Third Circuit outlined.

“On April 7, 2016, the District Court dismissed the complaint with leave to file an amended complaint within 30 days. The Court specifically instructed Nellom that an amended complaint should describe “(1) The specific statutory basis for federal court jurisdiction over this case; (2) The specific events which serve as the basis for his claims, and the dates on which these events took place; (3) How each of the defendants is involved in his claims; and (4) The harm he suffered, if any, from each violation.”

Instead, Nellom waited nearly two years, until February 2018, to file a motion to amend his original complaint. However, the amendment did not provide the information sought by the District Court and given the delay of 22 months in filing the motion, the required time period of 30 days having long since expired, the District Court denied the amendment.

This action led Nellom to appeal to the Third Circuit, claiming that the District Court abused its discretion in issuing the denial to amend. But the federal appellate court sided with the trial court in this matter.

The Third Circuit said, “The District Court did not abuse its discretion. Courts may refuse to allow amendment due to ‘undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment.’ As the District Court explained, these factors supported denying leave to amend here.”

“First, Nellom waited, without explanation, 22 months to file his amended complaint, flouting the Court’s 30-day deadline. Moreover, even at this late date, Nellom did not meaningfully address the flaws in his initial complaint. He has neither clearly defined his claims nor identified a basis for the District Court’s jurisdiction. In these circumstances, the District Court did not abuse its discretion in denying leave to amend,” the Third Circuit concluded.

U.S. Court of Appeals for the Third Circuit case 18-1618

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-01454

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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Aqua Pennsylvania Inc. U.S. Court of Appeals for the Third Circuit

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