Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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- Case 3:03-cv-00369-DJS g Document 29g4 Fnled O--1/30/2004 Page10 _ H
r . . . - » -
_ Ecott Lucas . . ` y - ‘ ‘
- From: - Mary Gamhsrdella [[email protected]] W .
_ Sant: ‘ Wednesday, January 21,.2004 12:07 FM ‘
_ Tn: Steven Younes; Scott Lucas. -
Cc: Mich_eIBay0nne , . · A
‘ Subject: . RE:Ksnios .
, Scott: we understand how some questions go to more than one claim; but I can think of y
many which would note-epg., you can start asking witnesses about prior employee leaves, -
reasons, returhs to work, etc.'etc. etc. We should simply not have to add additional l
-. subject areas to our preparation of witnesses when the claim is not yet in the case or, in
H ‘ the alternative, expose`these witnesses to a second deposition if the claim is added, ·
that would force additional prep time to refresh them as to prior testimony, etc., etc.
- etc. ‘ ‘
`With respect to Nella's testimony—-we fail to see how Nella "opened your eyes" as to this
claim, period. This is not a viable basis to amend so late in the game. As Plaintiff _
requested rescheduling of depos, and you knew these depos were scheduled a long time`ago, Y
query whether it was YOUR obligation to make sure the amendment was more`timely and ‘
whether you should have made sure Defendants were not making these decisions literally
days before a number of long scheduled depositions. ~Indeed, if I follow your logic, you .
could have said something the day after Nellals depo and did not--you waited another week .
to just dump papers on us._ That was one weak closer to scheduled depositions. You could
yeven have said something when discussing yet another discovery extension with Steve--you.
did not-—knowing that Defendants would be permitted to do additional written discovery and h ' `
ask more questions of your client, which would neceesiate more discovery time, and you·did ‘
not-think_to make sure our rights were preserved. Yet, you casually claim "no prejudice".
Simply astounding. [ , ` _. ` · _ . .
· .While we hesitate to educate the»Plaintiff, when you do the research, you will see Rule 15 · y
does not initially apply here as your brief~contends. You have to get beyond the good
cause requirement as your deadline»tc amend the complaint expired June 30i—see Fed. Rule -· E
=l6Cb). Per applicable caselaw, good cause includes, at a minimum, a showing that you didn y A
`, _not‘have any of the predicate facts within your knowledge to bring the amendment in a y
timely manner-—something you.already admit is not the case, This is the_first hurdle i
before you_even get to Rule 15, and Rule 15 requires that no prejudice result to
Defendants--something I think Defendants can easily prove. · “
I strongly urge you.to read the caselaw in this regard, Our opposition brief will be more ` _1
, than adequate on that point. Further, as Steve indicated, our objection to an attempt to j
amend a complaint under nearly identical circumstances was just sustained by Judge ` · f
Dorsey--so be assured the law is clear and Rule 15 is not your only hurdle~snot even your
first hurdlex“ we will therefore also·be requesting fees,_or in_the alternative, that ` .
plaintiff pay for us to reopen certain discovery if the mbtion to amend is.granted. ‘
Thus, while you cannot agree to limit questions probative ONLY to FMLA (which is all we _
asked), and you~cannot agree not to reopen depos, which we certainly appreciate, I do not
understand why you do not see the position we are in as defendants. By`your own` ` ·· , _
admission. these”witnesses may have knowledge pertinent to the new claim. We should not `
have to spend time`and money preparing people for an FMLA claim_not in this-case, period, l
. or erpose them and_UST,to additional time and money for a subsequent depo. _._ a
_ In shdrt, this last minute change is Plaintiff”s doing, not defendants. These issues ~»
~sheuld have been anticipated by a knowledgeable and experience lawyer, such as yourself. _
Thahk`you._`;_ ` _ ~ ~ » _ y ` ‘ '
>>> "Scott Lucas" 01/2l!04"ll;44AM.>>> · ` ._ - · ‘
Steve: - ` ` ` . " - - ` I · 5
· -_ The issue with your proposed compromise.is that questions as to the reasons for E ' _
termination are.probative of all the claims including the FMLA claim. Accordingly,.I-do _ . “
_1'J.¤lZ SS&`l’10‘lgv' yOU. can Expect me to not ask quegtipng that wq]1_]_]_d'u_]_·};im¤tgly`pygv€ pfqbgtivg y I ~
of the·FMLA claim. Indeed the deposition of Nella Viesta and her notes and related .·
documents, given when no FMLA was in-the picture, produced the need for the amendment. _
`Accbrdingly,`under your compromise, the questions I asked of Ms. Viesta would be`impropert I ,
- . `F i . - -_g_y ` I · ' --' .7. l' F- I U ‘ ` ·· - · H " i " "Q

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· Case_,,3:O3—cv-00369-DJS D0cument29g4 Enled O1-/30/2004) Pa_ge20f3 __ H
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_ `I will net agree te limit my discevery and else-agree te fereeleee the eptien ef fellew up
` `as this wenld be prejudicial. · · ` _
W I . - .
_ Next, yenr eententien that the metien te amend is semehew impreper is puzzling. Rule
lh autherizes sneh metiens threugh trial and even beyend. Yen are net prejudieed in any .
i way, and the idea yen weuld."eeaeh" yeur·witneeses te tailer their respenses te fit·
speeifie claims is net semething I am willing te agree is an apprepriate eeneern. ,-
. Accerdingly, I will await yeur ebjectien and metien fer pretective erder and·let
the eenrt determine the prepriety ef eur respective.pesitiens unless yen are willing tp `
· preeeed with the depesitiens that have been scheduled fer almest a menth new witheut M
l artificial limitatiens. ' · · _ ` *
- . . \ ·
I- ` Seett Lucas - l
-T--—Griginal Message--—~- , - .
Frem: Steven Yeunes`[mailte:[email protected]] ` ‘
. Sent: Wednesday, January 21, 2004 11:21 AM ` -
Te: Scett Lueas .
CG: Mary Gemhardella; Miehel Beyenne ' · - ‘ , __
Subject: Kanies . . .
aeett:- ` _
` We reeeived yeur letter dated January 20th and it is_clear te us that yeu_cempletely fail ·_ Ti _
te appreeiate the preearieus peeitien in which yen have plaeed`eur client by the L - Q
i1‘1eJ£C1.15eble and lhaitplieable delay in seeking te amend the cc>mplaint.. We (meaning ell
cenneel ef reeerd) haye had numereusudieenesiens_regarding the seheduling`ef depesitisns ` {
and related diecevery issues in this matter; in faet, seme ef the depesitiene haye been i
` renetieed en several beeasiens at yeur request. At ne time dnring any ef_these disenssiens
did ycu suggest er indicate in any way that yeur were even eentemplating amending the E
eemplaint. _Ih feet, as early as twe days befere yeur metien was filed. I was inquiring as
te yenr pesitien.with respect te,eur metien fer extensien ef-time te cemplete diseeyery; `E;
again, at ne time was the metien te amend mentienedx Irenieally, it appeared that'yeur. J
eensent te enr metien was given reluctantly which an hindsight further begglee my mind in .
light ef the mctien yeu ebyieuely knew yeu weuld be filing in the next day er twe. Yen, -
have had menths te attempt te bring the FMLA claim if yen theught it apprepriate te bring. 1
Indeed, yen have new en at least twe·bccasiens aeknewledged-that the claim is.bssed en "ne `
new factual ellegatiens," Under these circumstances, it seems_te us that it is ycnr ' ,
eendnct that is "speciens.W Nevertheless, while "ne newrfacts" are invelved, yeu·are ‘ ‘
elearly aware that many-different qnestiens een be asked ef witnesses te elieit evidence {
n prebative ef enly this claim. ~ ‘ - ~ -
l I em sure yen ean`appreciate that_a great·deal ef time and meney`isJspent en meeting and »
·`»prepping witnesses, fermnlating eress examinatien.guestiens, ete., based en the claims in ` _
the cemplaint. We centinne_te maintain that UST sheuld net be required te centinue with i `
disbevery until the defendants, ineluding Mark Uliasz whese depceitien ie ameng these at ` P
issue and whe by the waymis alse a party, knew the full gambit ef the allegatiens being i
ledged. This is-hardly an "ehstrnctienist" peaitien, Seett. In fabt,`we recently teek _
l the same eeurse ef actien in`anether_matter with remarkably the same set ef faets where ` .
_.,the cenrt ultimately sustained eur ebjeetien te the_metienjte amend. ` . T
Netwithstandingl we are willing te prepese the fellewing eempremise. If yen are_willing-» j
te represent in writing by 4:30 teday_that: (1) yen will net be asking ahy questiens ef`
any ef the witnesses enrrently-scheduled fer depeeitien which are prebatiye ef the FMLA »
· `elaim; and-(2) that in the event yenr metien te amend is granted, yen will net seek te l _
reepen the depesitiens taken te ask such questiens, we will preeeed_with the depesitiens` i
as planned. Otherwise; we will have ne eheiee but te maintain eur pesitien. ` j
Regarda,, ; .` _ ,_ ‘ - __ . ` _j l
-Eteven J; Yennes, Esq. { . - ` ‘ . .~ ` "` .- h
Epstein Becker & Green, P.C. ` " _ _ ~ ` . y
One Landmark Square, Snite lE00 · ‘ - , l _

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