Free Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-00617-LTB-BNB

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Filed 07/19/2005

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Civil Action No. 04-cv-617-LTB-BNB POLYROCK TECHNOLOGIES, LLC, a Colorado limited liability company, Plaintiff, v. GENERAL STEEL DOMESTIC SALES, LLC, et al., Defendants.

P A N IFS L I T F ' UNOPPOSED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiff PolyRock Technologies, LLC moves for leave to file a Second Amended Complaint and in support thereof states: 1. RULE 7.1A CERTIFICATION: Pursuant to D.C.Colo.LCivR 7.1A, the

undersigned conferred with counsel frdf dn 'G nr Sel G nt e K i tad o e nat ee l t , es n, n h n e s a e o g Demarest concerning this motion. Counsel confirmed that these defendants do not object to the request for leave to file a Second Amended Complaint. PolyRock did not attempt to discuss this m t n i df dn Ks r bcue e a ntepne t P l oks m ne C m ln o o wt e nat i i eas h hs o r odd o oy c'A edd o p i i h e se s R at (with which he was personally served on June 23, 2005) nor otherwise appeared in this action. 2. On March 29, 2004, PolyRock filed its Complaint and on May 6, 2005, PolyRock filed its First Amended Complaint against defendants. 3. N Shdl gO dr a be et e i t s ae P l oks eusfrev t o ceu n re hs en n r n h cs. oy c' r eto l e o i ed i R q a amend is therefore timely under Rule 16 and PolyRock is required to satisfy only the

Case 1:04-cv-00617-LTB-BNB

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requirements of Rule 15(a) in order to obtain leave to amend. Bridgestone/Firestone, Inc., 105 F.Supp.2d 1194, 1195 (D. Colo. 2000).

Fernandez v.

4. Rule 15(a) provides that leave to amend should be freely given when justice so requires. U.S. ex rel. Wright v. Cleo Wallace Centers, 132 F.Supp.2d 913, 917 (D. Colo. 2000); Drake v. City of Fort Collins, 927 F.2d 1156, 1163 (10th Cir. 1991); Wyoming Const. Co. v. Western Cas. & Sur. Co., 275 F.2d 97, 104 (10th Cir. 1960). Whether to grant leave to amend is committed to the discretion of the District Court. Where, as here, plaintiff seeks to amend in order to clarify allegations and eliminate claims (and not as the result of a prior dismissal), the liberal amendment policy underlying Rule 15(a) strongly favors granting leave to amend unless undue delay or unfair prejudice to the adversary will result. Bauchman for Bauchman v. West High School, 132 F.3d 542, 559 (10th Cir. 1997); R. E. B., Inc. v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir. 1975). 5. PolyRock seeks to file a Second Amended Complaint in order to clarify its claims and their bases and to eliminate certain claims that PolyRock elects not to pursue at this time in light of the undersigned recently-r a e cusl l a r er adf t l e i d one s e l e a h n a u investigation of this tn ' g s c ca matter. Discovery has only recently commenced (to date, only PolyRock has served discovery requests), defendants have not yet made their Rule 26 disclosures and no depositions have been taken. PolyRock has not unduly delayed seeking leave to amend and no unfair prejudice will result from permitting amendment. 6. For the reasons stated, PolyRock requests leave to file and serve the Second Amended Complaint attached hereto as Tab 1. 7. A proposed order is attached as Tab 2 frh C ut convenience. o t ors e '

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Case 1:04-cv-00617-LTB-BNB

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DATED: July 19, 2005

Respectfully submitted

s/ John A. DeSisto John A. DeSisto W. Curtis Graves FEATHERSTONE DESISTO LLP 600 17th Street, Suite 2400 Denver, Colorado 80202 Telephone: (303) 626-7100 Facsimile: (303) 626-7101 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiff PolyRock Technologies, LLC

CERTIFICATE OF SERVICE I hereby certify that on July 19, 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 e-mail addresses: Susan M. Hargleroad Pendleton, Friedberg, Wilson & Hennessey, P.C. [email protected] Kurt S. Lewis Lewis Scheid LLC [email protected]

s/ John A. DeSisto

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