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

Case 1:07-cv-00283-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE § § Plaintiff, § § v. § § CIANBRO CORPORATION, and § TRAVELERS CASUALTY AND SURETY § COMPANY OF AMERICA, § § Defendants. § __________________________________________§ § CIANBRO CORPORATION, § § Counter-Claim Plaintiff, § § v. § § M.C. PAINTING CORPORATION, § § Counter-Claim Defendant. § M.C. PAINTING CORPORTION

C.A. No. 1:07-cv-00283-GMS

TRIAL BY JURY DEMANDED

TRIAL BY JURY DEMANDED

DEFENDANT CIANBRO'S MOTION TO FILE AN AMENDED COUNTERCLAIM and to FILE AMENDED INITIAL DISCLOSURES COMES NOW, Defendant Cianbro Corporation ("Cianbro"), by and through undersigned counsel, pursuant to Fed .R. Civ. P. 15 and D. Del. LR 15.1, with this unopposed Motion to File an Amended Counter-Claim and to File Amended Initial Disclosures (the "Motion"), and in support thereof states as follows: 1. On May 23, 2007, Plaintiff M.C. Painting Corporation ("MC Painting") filed its

Complaint against Cianbro and John Doe Bonding Company alleging contract damages related to the South Market Street Bridge renovation project (D.I. #1). On May 31, 2007, the Complaint

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was amended to substitute Travelers Casualty and Surety Company of America ("Travelers") for John Doe bonding company. (D.I. #3)(hereinafter the "Amended Complaint") 2. On October 19, 2007, following discussion among counsel appearing for the named

parties, Cianbro filed its Answer to Amended Complaint and Counter-Claim of Defendant Cianbro Corporation (the "Answer and Counter-Claim")(D.I. #11)(Exhibit A)(original exhibits omitted). Travelers also answered the Amended Complaint on that day. 3. On December 18, 2007, the parties submitted to the Court a Joint Status Report (D.I.

#19). On December 20, 2007, the Court held a scheduling conference and on that day the parties filed with the Court a Proposed Scheduling Order (D.I. #21). The parties immediately began amicable discovery and have initiated discussions regarding both mediation and settlement. 4. On January 15, 2008, Cianbro filed its Fed. R. Civ. P. 26 Initial Disclosures ("Initial

Disclosure")(D.I. #28)(Exhibit B), which mirrored its Answer and Counter-Claim for damages. 5. On January 23, 2008, the Court approved the Proposed Scheduling Order. Shortly

thereafter, Cianbro recognized an error in its damages calculation as alleged in the Answer and Counter-Claim, and as detailed in the Initial Disclosure. 6. Cianbro alleged in the Answer and Counter-Claim damages of $45,221.00 (exclusive of

costs, attorneys' fees, and pre/post judgment interest), which was comprised of $32,247.00 associated with monitoring MC Painting's workmanship, and $12,974.00 for alleged overcharges and other costs paid by Cianbro. Cianbro's calculation unintentionally included as a part of the $12,974.00 damage allegation (rather than as a separate damage item) the $7,545.00 Cianbro paid to purchase a warranty bond for the State of Delaware which Cianbro alleges MC Painting was required to purchase pursuant to the Agreement. Cianbro's omission misstates its damages allegations by $7,545.00, and now Cianbro seeks leave from this Honorable Court to

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amend that damages allegation from $45,221.00 as sated in the Answer and Counter-Claim to $52,766.00 as alleged in its proposed Answer and Amended Counter-Claim. Cianbro does not seek leave to amend its Answer. 7. Fed. R. Civ. P. 15 requires that following any responsive pleading "a party may amend its

pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." 8. Cianbro respectfully submits that leave to file the Amended Counter-Claim (Ex. C)(with

exhibits) is appropriate in this instance where there is no objection by any other party to this suit, the omission was an inadvertent error, and the Amended Counter-Claim does not complicate the proceedings or require an amended scheduling order. Further, Cianbro respectfully submits that if permitted, the Amended Counter-Claim will require the proposed Amended Initial Disclosure (Ex. D). WHEREFORE, Cianbro prays that this Honorable Court enter an Order, in the form attached hereto, granting Cianbro's Motion to file both the Amended Counter-Claim and an Amended Initial Disclosure, and thereafter pursuant to D. Del. LR 15.1 direct the Clerk to docket the proposed Amended Counter-Claim and Amended Initial Disclosure. McCARTER & ENGLISH, LLP /s/ Christopher A. Selzer Christopher A. Selzer, Esq. (#4305) 405 N. King Street, 8th Floor Wilmington, DE 19801 (302)-984-6300 (302)-984-6399 facsimile Counsel for Defendant Cianbro Corporation Date: February 14, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE M.C. PAINTING CORPORTION § § Plaintiff, § § v. § § CIANBRO CORPORATION, and § TRAVELERS CASUALTY AND SURETY § COMPANY OF AMERICA, § § Defendants. § __________________________________________§ § CIANBRO CORPORATION, § § Counter-Claim Plaintiff, § § v. § § M.C. PAINTING CORPORATION, § § Counter-Claim Defendant. §

C.A. No. 1:07-cv-00283-GMS

TRIAL BY JURY DEMANDED

TRIAL BY JURY DEMANDED

PROPOSED ORDER HAVING CONSIDERED, this ______ day of _________, 2008, Cianbro Corporation's Motion to File an Amended Counter-Claim and to File Amended Initial Disclosures (the "Motion"), the proposed Amended Counter-Claim of Cianbro and the proposed Amended Initial Disclosure, the Motion is hereby GRANTED, and the Clerk is directed to enter upon the Docket Cianbro's Amended Counter-Claim and Amended Initial Disclosure. IT IS SO ORDERED. ________________________________ The Honorable Gregory M. Sleet 4
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CERTIFICATE OF SERVICE I, Christopher Selzer, hereby certify that on February 14, 2008, I electronically filed the foregoing MOTION TO FILE AN AMENDED COUNTERCLAIM AND TO FILE AMENDED INITIAL DISCLOSURES with the Clerk of the Court, and caused service of the same upon counsel of record via the CM/ECF system.

By:

/s/ Christopher Selzer Christopher Selzer, Esq. (#4305)

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