After analyzing these Fromson factors, the district court concluded that Nelson would not suffer undue prejudice if added as a party because, inter alia: (1) Defendants' fee claim against Nelson arose out of the very same inequitable conduct attributed to Nelson himself as set forth in the original pleadings; (2) Nelson was not prejudiced by a lack of notice due to his identity of interest with Ohio Cellular as its president, sole shareholder, effective controller of the litigation, inventor of the invention that was the subject matter of the '702 patent, co-applicant, and as a witness at the hearing on inequitable conduct; and (3) Nelson must be deemed on notice that the fee award claim could have been brought against him personally because, in his capacity as corporate president, he himself committed the inequitable conduct that became the basis for the fee award and totally controlled the corporation that was the original party, as well as the litigation over this very issue. Although "undue delay" is a proper consideration under Foman, "delay by itself is not sufficient to deny a motion to amend." General Elec. The district court properly focused its inquiry on whether Nelson would be unduly prejudiced if Defendants' post-judgment motion to amend pursuant to Rule 15 were granted, measured, as the district court did, according to the factors discussed in Fromson. Dissenting opinion filed by Circuit Judge PAULINE NEWMAN. Ohio Cellular Products Corporation ("Ohio Cellular") and Donald Nelson ("Nelson") appeal from the decision of the United States District Court for the Northern District of Ohio, granting Adams USA, Inc. In May 1994, Ohio Cellular sued Defendants for infringement of U. In October 1995, the asserted patents were found invalid for anticipation under 35 U. On October 13, 1997, three weeks after the fee liability decision was confirmed, in connection with the fee negotiations, Ohio Cellular's counsel sent a letter to Defendants' counsel, stating: I am writing to potentially save you some time. 25, 1997) ("[T]he Court finds that Donald Nelson knew [of the prior art] . Thus, the district court found that the first factor weighed against finding prejudice to Nelson. Therefore, he is subject to personal liability for that conduct. Thus, the district court discerned that all three factors weighed against a finding that Nelson would suffer undue prejudice if added as a party, even though the motion to amend was filed over four months after the fee liability judgment was entered and two weeks after the amount of the fee awards was determined. On March 25, 1998 the court granted the motion, and entered judgment against Mr. Opinion for the court filed by Circuit Judge MICHEL. Because we conclude that under the particular circumstances of this case the district court did not abuse its discretion in adding Nelson as a third-party defendant and amending the judgment quantifying the fee award to obligate Nelson individually after post-trial proceedings were concluded, we affirm. 5,273,702 ("the '702 patent") and 4,980,110 ("the '110 patent"). After judgment on liability for fees was entered, Defendants and Ohio Cellular attempted to negotiate the amount of the attorney fees. The evidence is clear that Nelson was personally involved in all aspects of the Plaintiff corporation's operations, including Id. In this case, Nelson was personally responsible for the tortious conduct that led to the Plaintiff corporation's liability. On February 3, 1998 Adams USA moved to amend retrospectively its third-party complaint against All American Sports Corporation to add Mr. Nelson as a third-party defendant and to include him in the judgment for attorney fees and costs. The government was a stranger to the lawsuit and the acts on the basis of which it was brought and the fees awarded. Rather than being governed by Graham, this case falls into a broad category in which one party seeks to amend its complaint to add an additional party pursuant to Rule 15. Based on these irreversible findings, we hold the district court acted within its discretion in allowing amendment. Because Nelson does not here contest the holding of inequitable conduct, which the district court relied on as the sole basis for finding the case exceptional and thus for awarding attorney fees, the only remaining issue is whether Nelson was properly added as a third-party defendant and made personally liable for the February 12, 1997 fee judgment, upheld on reconsideration on September 25, 1997, quantified on January 20, 1998. Nor were its underlying findings of no undue delay or prejudice clearly erroneous. Cir.1992) ("The district court's finding of undue delay is not clearly erroneous.").
On February 3, 1998, two weeks after the amount of fees was determined by the district court, Defendants filed the motion that is the subject of this appeal. As to the third factor, the district court found as follows: Finally, Nelson was on notice that Defendants' claim could have been brought against him personally, and that he might personally be liable for the Plaintiff corporation's tortious conduct. These notice-pleading procedures are designed to protect due process, not to avoid it. Nelson and imposition of personal liability against him, after the litigation against Ohio Cellular was over and judgment was entered against Ohio Cellular. Nelson was not mentioned or brought into the action. Nor can Graham lend support to the argument of Nelson that just because he was not named in the suit or the motion for fees, and for no other reason, he cannot later be liable for fees. In contrast to the government in Graham, Nelson hardly was a stranger to this case. Thus, Graham hardly can stand for the proposition that the individual who actually committed the wrongdoing cannot be held liable for a fee award in cases where a fee award is warranted, as Nelson does not dispute it is here. Its reasoning, moreover, was set forth clearly and convincingly in a well-written opinion which it reconsidered on motion, but declined to change.OHIO CELLULAR PRODUCTS CORPORATION, Plaintiff-Third Party Plaintiff-Appellant, and Donald E. All American Sports Corporation, Third Party Defendant. Beres, Wheat, Camoriano Smith & Beres, PLC, of Louisville, Kentucky, argued for defendant/third party plaintiff-appellees. If you wish to discuss a resolution on a nominal basis, please let me know. Nelson had every reason to believe from the moment that Plaintiff corporation instituted this action that every penny the corporation spent would be a penny out of his own pocket. Absent rare and special circumstances, personal liability can not be imposed on a non-party by the simple expedient of amending a complaint to make him a party after the case has been tried, decided, and judgment rendered C indeed, one year after judgment was rendered. Nelson was not a party when the issues were litigated, and no amendment to any complaint, or any other proposal to add him as a party, was made during any part of the action, even though he was present and testified as a witness. Nelson had no opportunity to contest the issue of his personal liability for inequitable conduct as an inventor. and Apehead Manufacturing, Inc., Defendants/Third Party Plaintiffs-Appellees, v. and Apehead Manufacturing, Inc.'s ("Defendants'") post-judgment motion for leave to amend their third-party complaint to add Nelson in his individual capacity as a third-party defendant. The fact is that if the attorney fee award exceeds a very limited amount, you will not collect it because the company will be liquidated. With respect to the second factor, the district court concluded that there was not "any dispute that Nelson had notice sufficient to avoid prejudice to his defense and should have known that the action could have been brought against him." Id. In coming to this conclusion, the district court stated: The notice requirement is satisfied if there is a sufficient "identity of interest" between the original defendant and the newly added defendant, so that the institution of an action against one serves to provide notice of the litigation to the other. Osborne, 133 F.3d 315, 320 (5th Cir.1998); Fromson, 886 F.2d at 1304; Hernandez Jimenez v. Nelson is the president and sole shareholder of the plaintiff corporation; thus, the identity of interest between the two parties is near-complete. Accordingly, the district court granted Defendants' motion. Nelson personally as "an additional party." This was an unusual procedure, indeed unprecedented.