govinfo:USCOURTS-ncwd-3_22-cv-00034-5

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION 
CIVIL ACTION NO. 3:22-CV-00034-KDB-WCM 
 
GLOBAL PLASMA SOLUTIONS, 
INC. , 
 
 
Plaintiff, 
 
 v. MEMORANDUM AND ORDER 
 
ELSEVIER LTD AND 
ELSEVIER INC. , 
 
 
Defendants. 
 
 
THIS MATTER is before the Court on Plaintiff’s Motion for Leave to File Second 
Amended Complaint (Doc. No. 209) and Defendants’ Motion for Judgment on the Pleadings (Doc. 
No. 195). The Court has carefully considered Plaintiff’s motion and the parties’ briefs and exhibits. 
Because the Court finds that Plaintiff has satisfied the generous standard for substantive 
amendment of pleadings and allowing the amendment will not prejudice Defendants if the case 
management schedule is modified as necessary, the Court will GRANT the Plaintiff’s motion to 
amend. With this ruling, the pending motion for Judgment on the Pleadings will be denied as moot. 
I. LEGAL STANDARD 
Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading after 
the expiration of the time periods specified in Rule 15(a)(1) “only with the opposing party’s written 
consent or the court's leave.” Fed. R. Civ. P. 15(a)(2) ; Melvin v. Cent. Piedmont Cmty. Coll., No. 
3:24-CV-00491-KDB-DCK, 2024 WL 3559603, at *1 (W.D.N.C. July 26, 2024). This is a liberal 
standard, and the Rule provides that “[t]he court should freely give leave when justice so requires.” 
Id.; Cook v. Howard, 484 F. App'x 805, 814 (4th Cir. 2012) (“Rule 15(a)(2) articulates a relatively 

 
 
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liberal amendment policy ....”); Wall v. Fruehauf Trailer Servs., Inc., 123 F. App'x 572, 576 (4th 
Cir. 2005) (noting that “leave to amend is a liberal standard”). Nevertheless, the “grant or denial 
of an opportunity to amend is within the discretion of the District Court .” Drager v. PLIVA USA, 
Inc., 741 F.3d 470, 474 (4th Cir. 2014) (quoting Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 
121 (4th Cir. 2013)). 
A district court may deny a party leave to amend when “(1) ‘the amendment would be 
prejudicial to the opposing party;’ (2) ‘there has been bad faith on the part of the moving party;’ 
or (3) ‘the amendment would have been futile.’” Id. An amendment is considered futile when it is 
“clearly insufficient or frivolous on its face.” Miller v. Maryland Dep't of Nat. Res., 813 F. App'x 
869, 880 (4th Cir. 2020) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 
1986)). 
II. DISCUSSION 
While acknowledging that “courts should ‘liberally allow amendment’ of the pleadings,” 
Defendants argue that 1) Plaintiff “unduly delayed” seeking the amendment, causing them “undue 
prejudice”; 2) the motion to amend is sought in “bad faith” because it was briefly referenced in 
Plaintiff’s same day response to Defendants’ Motion for Judgment on the Pleadings ; and 3) the 
amendment is futile. Plaintiff responds that the delay in the amendment was caused by Defendants’ 
failure to timely produce critical documents, any bad faith is on the part of the Defendants and the 
amendment is not futile. 
First, without resolving the back and forth with respect to the Parties’ discovery disputes,1 
the Court finds that the amendment was not sought so late that Defendants will be prejudiced. To 
 
1 The Court has scheduled a hearing on June 24, 2026, to address the Parties’ motions related to 
discovery. 

 
 
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the extent that the Defendants need to extend the discovery period to gather evidence to respond 
to the amendment, the Court will modify the case management schedule to accommodate 
reasonable requests. Second, the fact that the filing of an amended complaint moots a pending 
motion for judgment on the pleadings as a matter of course is not, standing alone, an indication of 
bad faith sufficient to deny an amendment. Indeed, if it were, then the filing of a motion to dismiss 
would effectively foreclose the amendment of a complaint, which is neither efficient nor consistent 
with the policy allowing liberal amendment of the pleadings. 
Finally, the amendment is not futile. In the proposed Second Amended Complaint, Plaintiff 
adds additional factual details based on recent discovery to support its defamation claim and adds 
a Lanham Act “false advertising” claim generally based on the same allegations underlying its 
defamation claim; that is, that Defendants’ promotion of a critical article about Plaintiff’s product 
as “peer reviewed” was false and damaged Plaintiff ’s business. While Defendants will be 
permitted to fully challenge those claims in future motions,2 they are not “futile,” in the context of 
Rule 15. See Mitchell v. Tuner, No. CV SAG-25-1149, 2026 WL 1529328, at *1-2 (D. Md. June 
1, 2026) ( an amendment is futile only if it is “clearly insufficient or frivolous on its face” and a 
futility review “does not involve an evaluation of the underlying merits of the case ”). Therefore, 
Plaintiff will be permitted to file their proposed Second Amended Complaint. 
 
 
 
 
2 The Court respectfully suggests that further motion practice with respect to the pleadings should 
not be filed. Rather, the Defendants should complete discovery then promptly pursue Summary 
Judgment. The Court can then consider all of Defendants’ arguments against the Second Amended 
Complaint in the context of the full record. 

 
 
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III. ORDER 
NOW THEREFORE IT IS ORDERED THAT: 
1. Plaintiff’s Motion for Leave to File Second Amended Complaint (Doc. No. 209) is 
GRANTED and Plaintiff is directed to file its proposed amended complaint within 
seven days of the date of this Order; 
2. Defendants’ Motion for Judgment on the Pleadings (Doc. No. 195) is DENIED as 
moot; and 
3. This case shall proceed towards a resolution of the merits of Plaintiff’s claims in 
the absence of a voluntary resolution of the dispute among the parties. 
SO ORDERED ADJUDGED AND DECREED. 
 
Signed: June 15, 2026 

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