Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-01006-VJW

Document 34

Filed 03/25/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FOREST GLEN PROPERTIES, LLC Plaintiff vs. UNITED STATES OF AMERICA Defendant

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Case No. 05-1006C Judge Wolski REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND ITS COMPLAINT

Here, Foman v. Davis, 371 US 178, 9 L.Ed.2d 222, 226 (1962) and its progeny control. Under Federal Civil Rule 15(a), leave to amend a pleading "should be freely given" absent an apparent or declared reason such as undue delay, bad faith or dilatory motive on movant's part, a repeated failure to cure deficiencies by previously-allowed amendments or an undue prejudice, none of which are here applicable. Defendant claims "substantial" prejudice if leave is here allowed to amend the Complaint by joining the former receivers for Y/AWARE Programs, Inc. and/or Diversity Institute, Inc., Plaintiff's assignors, as parties plaintiff to this action. The "prejudice" expressed is that the Defendant never received the former receivers' mandatory disclosures; and, now that "discovery has closed," it has been denied the opportunity to propound "document or deposition discovery." Wholly apart from the observation that the discovery produced by the Plaintiff-Assignee should be identical to that to be produced by its Assignors, the former have no objection to the "reopening" of discovery for the purpose stated. As such, the requested leave should be "freely allowed," supra; and, since the former receivers' claim arose out of the transaction and occurrence set forth in the Complaint, the amendment will "relate back" to the date of that Complaint under Civil Rule 15(c)(2). For this additional reason, Plaintiff's motion for leave to so amend its pleading should be GRANTED.

Case 1:05-cv-01006-VJW

Document 34

Filed 03/25/2008

Page 2 of 2

GUARNIERI & SECREST, P.L.L.

s/Michael D. Rossi MICHAEL D. ROSSI (#0005591) 151 East Market Street P.O. Box 4270 Warren, Ohio 44482 (330) 393-1584 ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on March 25, 2008, a copy of the foregoing Reply to Defendant's Opposition to Plaintiff's Motion for Leave to Amend its Complaint was filed electronically. Notice of this filing will be sent to all parties by operation to the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Michael D. Rossi MICHAEL D. ROSSI ATTORNEY FOR PLAINTIFF

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