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

Case 1:04-cv-01146-LTB-CBS

Document 52

Filed 02/01/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-1146-LTB-CBS GARY S. COHEN, Plaintiff, v. INFOLINK SCREENING SERVICES, INC., et al. Defendants.

MOTION FOR LEAVE TO FILE AMENDED ANSWER

Pursuant to Fed. R. Civ. P. 15(a), Defendant Phoenix Research, Inc., respectfully moves this Court for an order granting it leave to file its Amended Answer To Plaintiff's Second Amended Complaint, Crossclaim Against Defendant Infolink Screening Services, Inc., And Jury Demand, in the form attached hereto as Exhibit A. As support for this Motion, Defendant Phoenix Research states as follows: CERTIFICATION UNDER D.C.COLO.LCivR 7.1(A) Undersigned counsel hereby certifies that he has conferred with Joseph Lapham, counsel for Plaintiff, and Todd Drake, counsel for Defendant Infolink Screening Services, Inc. Although Plaintiff disagrees with the substance of the amendment to the Answer, Mr. Lapham states that Plaintiff will not oppose this Motion. Defendant Infolink does not oppose this Motion.

Case 1:04-cv-01146-LTB-CBS

Document 52

Filed 02/01/2006

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DISCUSSION Phoenix filed its answer in this matter on August 3, 2005. Over four months later ­ on December 21, 2005, Plaintiff's First Set Of Interrogatories, Requests For Production Of Documents, And Requests For Admission Propounded To Defendant Phoenix was served. Phoenix served its responses on January 19, 2006. In the course of preparing those responses, Phoenix became aware that one of its responses in its Answer was incorrect. The attached Amended Answer corrects the error in the response to Paragraph 6 of Plaintiff's Second Amended Complaint. Amended pleadings are permitted under Fed. R. Civ. P. 15(a) upon leave of court. Rule 15(a) further states that "leave shall be freely given when justice so requires." Further, the Tenth Circuit interprets Rule 15(a) in favor of amendment. Polin v. Dun & Bradstreet, Inc., 511 F.2d 875, 877 (10th Cir. 1975). In general, leave to amend is only denied for reasons such as bad faith, undue delay, a dilatory motive on the part of the movant, or undue prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Defendant Phoenix submits that its Amended Complaint will correct an error in the original pleading, and is not sought in bad faith. Further, because this error was not realized until Phoenix served responses to Plaintiff's discovery requests on January 19, 2005 ­ only days ago ­ this request is not made with undue delay or dilatory motive. Moreover, this request will not prejudice Plaintiff or Defendant Infolink, because the parties have agreed in the Amended Scheduling Order to allow amended pleadings until February 15, 2006.

Case 1:04-cv-01146-LTB-CBS

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Filed 02/01/2006

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WHEREFORE, Defendant Phoenix respectfully requests that the Court enter an order granting Defendant leave to amend its answer to correct the error in response to Paragraph 6 of Plaintiff's Second Amended Complaint.

Kyle Seedorf SNELL & WILMER, L.L.P. 1200 Seventeenth Street. Suite 1900 Tabor Center Denver, CO 80202 Phone (303) 634-2000 Fax (303) 634-2020 Attorneys for Defendant Phoenix Research, Inc.

Case 1:04-cv-01146-LTB-CBS

Document 52

Filed 02/01/2006

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CERTIFICATE OF SERVICE I hereby certify that on the 1st day of February, 2005, 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 at their registered e-mail addresses: Marc F. Bendinelli BENDINELLI LAW OFFICE, P.C. 11184 Huron St., Suite 10 Northglenn, CO 80234 Fax: (303) 940-9933 Attorney for Plaintiff, Gary S. Cohen C. Todd Drake Stephen J. Hensen TIEMEIER & HENSEN, P.C. 1515 Arapahoe Street, Suite 1300 Denver, CO 802020 Fax: (303) 623-1734 Attorneys for Defendant, Infolink Screening Services, Inc. And I hereby certify that I have mailed or served the document or papper to the following nonCM/ECF participants in the manner indicated by the non-participant's name: None

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