Free Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:07-cv-00412-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. HEALTH AND WELFARE FUND, N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. PENSION FUND, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 DEFERRED INCOME PLAN, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 APPRENTICESHIP AND TRAINING COMMITTEE, THE DELAWARE DIVISION INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS' VACATION FUND, and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313, Plaintiffs, v. TRI-STATE TECHNOLOGIES, INC., A Delaware Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-412 (GMS)

PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT

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Plaintiffs, by and through their undersigned counsel, respectfully move for the entry of an Order permitting Plaintiffs to file a Second Amended Complaint to add new factual allegations and an additional defendant. The grounds for this motion are as follows: 1. After filing the First Amended Complaint in September 2007, Plaintiffs'

counsel was contacted by the President of the Defendant, Tri-State Technologies, Inc. ("Tri-State"), to discuss possible settlement of the dispute. The parties engaged in settlement discussions for several months including possible dollar values, payment time frames, and security interests related to such a settlement. 2. In late November 2007, Plaintiff's counsel was advised that the Tri-State

did not have any money to settle the lawsuit and had allegedly ceased its operations and did not intend to satisfy debts owed to any unsecured creditors, but would not be filing for bankruptcy protection. 3. Shortly thereafter, Plaintiffs learned that the same individual who operated

Tri-State, Edward Mendez ("Mendez"), had recently caused his father to form a new corporation for Mendez to run, which would substantially continue the business operations previously done by Tri-State. 4. Plaintiffs have reason to believe that the new corporation, Summit

Mechanical, Inc. ("Summit") is merely an alter ego of Tri-State and Mendez,and that Summit was created to continue Tri-State's former business while defrauding Tri-State's creditors. Plaintiffs have further reason to believe that Summit and Mendez are using

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assets belonging to Tri-State, including inter alia, a truck that has been seen driven as recently as February, 2008, that still bears the name of Tri-State on it. 5. The proposed Second Amended Complaint, a copy of which is attached

hereto as Exhibit A, seeks to add these new factual allegations, add Summit and Mendez as defendants, and alleges liability on the part of Summit and Mendez under an alter ego theory of corporate veil-piercing. 6. A blacklined copy of the proposed Second Amended Complaint is

attached hereto as Exhibit B, showing the changes made from the First Amended Complaint. 7. Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint

"shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). 8. The proposed defendants will not be prejudiced by the amendment, as

both entities, through Mendez, have been aware of the filing of this lawsuit and the underlying claims since shortly after the original complaint was filed. 9. If Plaintiffs are not permitted to pursue their Second Amended Complaint,

Plaintiffs may be deprived of any recovery as a result of the fraud perpetrated by TriState, Summit, and Mendez. WHEREFORE, Plaintiffs respectfully request that the Court enter the Order attached hereto, permitting Plaintiffs to file and serve their proposed Second Amended Complaint.

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CROSS & SIMON, LLC By:_ / s / Erica N. Finnegan Erica N. Finnegan (#3986) 913 North Market Street, 11th Floor Wilmington, DE 19801 Tel.: (302) 777-4200 Fax: (302) 777-4224 [email protected] Counsel to Plaintiffs

Dated: March 7, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. HEALTH AND WELFARE FUND, N.E.C.A. LOCAL UNION NO. 313 I.B.E.W. PENSION FUND, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 DEFERRED INCOME PLAN, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313 APPRENTICESHIP AND TRAINING COMMITTEE, THE DELAWARE DIVISION INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS' VACATION FUND, and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION NO. 313, Plaintiffs, v. TRI-STATE TECHNOLOGIES, INC., A Delaware Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-412 (GMS)

ORDER GRANTING LEAVE TO AMEND COMPLAINT

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The Plaintiffs having filed their Motion for Leave to Amend Complaint on March 7, 2008, and the Court finding good cause to grant the motion, it is hereby ORDERED, that the Plaintiffs' Motion is granted and Plaintiffs' may file their Second Amended Complaint within five (5) business dates of the docketing of this Order and may serve the Second Amended Complaint pursuant to the Federal Rules of Civil Procedure.

Chief Judge Gregory M. Sleet

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CERTIFICATE OF SERVICE I, Erica N. Finnegan, certify this 7th day of March 2008, that the attached Motion for Leave to Amend Complaint was served on Tri-State Technologies, Inc., as follows: By Hand Delivery TRI-STATE TECHNOLOGIES, INC. c/o YCS&T Services, LLC 1000 West Street Brandywine Building, 17th Floor Wilmington, DE 19801

By First Class Mail TRI-STATE TECHNOLOGIES, INC. Attn: Ed Mendez 300 Caron Drive Bear, DE 19701

_ / s / Erica N. Finnegan Erica N. Finnegan (#3986) CROSS & SIMON, LLC 913 North Market Street, 11th Floor Wilmington, DE 19801 Tel.: (302) 777-4200 Fax: (302) 777-4224 [email protected]