Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC., a Delaware limited liability company, POSTGRADUATE INSTITUTE FOR MEDICINE, Inc., a Delaware corporation, JOBSON EDUCATION GROUP, LLC, a Delaware limited liability company doing business as INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, Defendants.

PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Pursuant to Fed. R. Civ. P. 15, Plaintiff Greg Feldman, by and through his attorneys, the Student Law Office of the University of Denver Sturm College of Law, seeks leave to amend his Complaint. Mr. Feldman seeks to more clearly state his claims for relief, add a state law claim of outrageous conduct, and based upon information learned during the expedited discovery process order by this Court, to capture the correct defendant party names. Mr. Feldman relies on the following in support of his motion. FACTUAL BACKGROUND Mr. Feldman filed his Complaint on June 9, 2004. On July 14, 2004, Mr. Feldman filed an Amended Complaint in which Mr. Feldman added a claim under 42 U.S.C. § 1981 and made other minor alterations to his original Complaint. In April and May of 2005, the entity which employed Mr. Feldman during the relevant time period, Jobson Publishing L.L.C., was

-1-

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 2 of 7

purchased and subsequently changed its name to "Jobson Publishing Acquisition, LLC," and then later to "Jobson Publishing LLC," who Plaintiff now names as a proper party defendant in the proposed amended complaint. (The proposed Second Amended Complaint is attached as to this motion as Exhibit 1). Mr. Feldman obtained new counsel in July 2005. In its Order on Motion to Dismiss or to Compel Arbitration, dated September 28, 2005, the Court noted in its footnote that Mr. Feldman's claims for relief were not clearly stated. Plaintiff's counsel engaged in discussions with defense counsel related to the acquisition of Jobson Publishing beginning on September 28, 2005, but were unable to acquire adequate information through informal means. Defendants Jobson Publishing, LLC and Postgraduate Institute for Medicine, Inc. filed an Answer to Plaintiff's Amended Complaint on October 12, 2005. The Court, in its Scheduling Order, dated November 15, 2005, set the deadline for Joinder of Parties and Amending the Complaint for December 6, 2005. This deadline was subsequently changed in the Court's December 1, 2005 Minute Order to January 6, 2006. Mr. Feldman conducted a deposition pursuant to Fed. R. Civ. P. 30(b)(6) on December 20, 2005, in order to ascertain the proper party defendants and their correct corporate names. Plaintiff now moves to amend his complaint to make clear the facts supporting his claims, a state law claim of outrageous conduct, and capture the correct defendant party names, based upon information learned during the Court-sanctioned expedited discovery process.

-2-

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 3 of 7

ARGUMENT A. The Standard Under Rule 15 is Liberal.

Mr. Feldman seeks leave of this Court to file a Second Amended Complaint based upon authority in Fed. R. Civ. P. 15. Rule 15 provides, in pertinent part, that, "a party may amend the party's pleading only by leave of court ... and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Furthermore, the phrase, "freely given when justice so requires," has been liberally construed. The Supreme Court has held that: [T]his mandate is to be heeded.... In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.' Foman v. Davis, 371 U.S. 178, 182 (1962). The Tenth Circuit requires that "a district court must justify its denial of a motion to amend with reasons such as futility of amendment or undue delay." Bauchman v. West High Sch., 132 F.3d 542, 559 (10th Cir. 1997). Accordingly, "[i]f no prejudice is found, then leave normally will be granted." Fed. Prac. & Proc. Civ. 2d § 1484 (1990 & 2000 Supp.) B. Plaintiff is Appropriately Amending Based on Facts Disclosed During Discovery and by Order of the Court.

Granting leave to amend the complaint is not futile, nor would it cause undue delay because the case has not moved beyond preliminary proceedings. Mr. Feldman seeks to amend the Complaint to name the proper party defendants to this action and to cure any procedural

-3-

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 4 of 7

deficiencies in the Complaint, including those noted by the Court in its Order on Motion to Dismiss or to Compel Arbitration dated September 28, 2005. During the expedited discovery granted by this Court, Plaintiff took the 30(b)(6) deposition of Robert Amato, former President and CEO of Jobson Publishing L.L.C. (the company which employed Mr. Feldman during the relevant time period). Mr. Amato is also the current President of XJP, LLC (the remainder entity of Jobson Publishing L.L.C., from when it was purchased by Jobson Publishing Acquisition, LLC, and its parent company, the Wicks Group). During this deposition, Plaintiff was able to ascertain the names of the proper party defendants, namely XJP, LLC and Jobson Publishing LLC, (f/n/a Jobson Publishing Acquisition, LLC, and the successor in interest to Jobson Publishing L.L.C.). Accordingly, amending the complaint to name these correct party defendants is in the best interest of all concerned parties. Additionally, Plaintiff had clarified the important claims in his Complaint. Plaintiff was prompted to take these measures by the Court in its Order on Motion to Dismiss or to Compel Arbitration dated September 28, 2005. In doing so, Plaintiff also articulates a state law claim of outrageous conduct based on the same conduct alleged in the original claim. Importantly, Plaintiff is not setting forth any additional facts or claims that are not closely tied to the original complaint. C. No Factors Counsel Against Allowing Amendment of the Complaint.

Defendants will not be unduly prejudiced by virtue of granting leave to amend the Complaint because they have not spent significant time or incurred significant costs in this proceeding. Defendants have only recently filed an Answer, which typically incurs only a small amount of time and costs. To date, the parties have engaged in minimal discovery, consisting

-4-

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 5 of 7

only of mandatory disclosures pursuant to Fed. R. Civ. P. 26(a)(1), and Plaintiff's deposition pursuant to Fed. R. Civ. P. 30(b)(6), which was limited to ascertaining the correct party defendants. Defendants have not conducted any depositions. No discovery on the merits of the claims has been conducted to date. Further, Defendants will not be unduly prejudiced by virtue of granting leave to amend the Complaint because Mr. Feldman does not substantively alter the factual recitation and allegations in his Complaint. The Second Amended Complaint merely meets procedural requirements in fully stating Mr. Feldman's claims for relief, and does not advance a substantially new theory. The additional claim for outrageous conduct is based on the factual allegations already stated in the current Complaint. Proving the elements of the claim for outrageous conduct will involve little additional discovery for the Defendants and will not prejudice them. Finally, granting leave to amend the Complaint is not futile because it will enable Mr. Feldman to cure any defects in the current Complaint. The current Complaint does not name the proper parties because it does not use the correct names of the successor in interest and the remainder entity of the company that employed Mr. Feldman during the relevant time period. Importantly, the sale of the company which employed Mr. Feldman occurred only approximately 7 months ago, after the last complaint was filed. Furthermore, the current Complaint may not adequately address Mr. Feldman's claims under which relief can be granted. Denial of leave to amend the Complaint may result in an absolute denial of justice for Mr. Feldman.

-5-

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 6 of 7

CERTIFICATE OF COMPLIANCE WITH D.C. COLO. LR 7.1(A) In accordance with Local Rule, the undersigned counsel have conferred with counsel for the Defendants in a good faith effort to resolve the issues raised by this motion. Opposing counsel has not consented to this motion. Dated: January 6, 2006 Respectfully submitted, STUDENT LAW OFFICE

/s/ Nantiya Ruan Nantiya Ruan University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] Attorney for Plaintiff Greg Feldman

/s/ Ari Krichiver Ari Krichiver, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

/s/ Julie Schmidt Julie M. Schmidt, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

-6-

Case 1:04-cv-01185-WDM-PAC

Document 38

Filed 01/06/2006

Page 7 of 7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 6th day of January 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected] [email protected]

/s/ Nantiya Ruan Nantiya Ruan STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 Tel: 303.871.6140 Fax: 303.871.6847 Email: [email protected] Attorney for Plaintiff Greg Feldman

-7-