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

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Defendants/Third-Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third-Party Defendant and Counterclaimant. MOTION OF PLAINTIFF FOR LEAVE TO FILE SUPPLEMENTAL AND AMENDED COMPLAINT AND JURY DEMAND ­ AND ­ CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A

Plaintiff Leprino Foods Company (" Leprino" or " Plaintiff" through its counsel, ), respectfully moves this Court pursuant to Fed. R. Civ. P. 15(a) and (d) for leave to file its Supplemental and Amended Complaint and Jury Demand. As grounds therefor, Plaintiff states as follows: 1. Pursuant to the Court' Second Amended Scheduling Order, the deadline s

for amending pleadings and adding parties is July 1, 2005. However, Plaintiff gave notice to counsel for Defendants Big-D Construction Corp. ­ California and Big-D

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Construction Corp. (collectively hereinafter referred to as " Big-D" that Plaintiff intended ) to supplement and amend its complaint by way of letter dated May 13, 2005. Additionally, many of the amended/supplemental allegations were included in Plaintiff' s statement of claims in the most recent amended scheduling order. 2. Plaintiff desires to supplement and amend its complaint to essentially

clarify some of the allegations in the original complaint. Discovery has revealed facts that were heretofore unknown to Plaintiff. 3. For example, during the course of this litigation, Plaintiff has learned of

transactions, occurrences and events on the part of Big-D that serve to further breach the contract that is the subject of this litigation. Among other things, it was discovered that Big-D and Third-Party Defendant Marelich Mechanical Co., Inc. (" UMM" conspired ) to and did enter into a secret agreement detrimental to the rights and interests of Leprino. Leprino believes that Big D' secret agreement with UMM, as well as joining s UMM in this action, breached additional obligations to Leprino. 4. Additionally, Plaintiff seeks to add both Big-D Corporation and Big-D

Capital Corp. as defendants, in part, because of the conflicting information provided by Big-D in its corporate disclosure statement and responses to Plaintiff' written discovery s concerning the identity of the parent business entity of Big-D Construction Corp.California. While Big-D' counsel was recently asked to clarify this information, no s correction to either the corporate disclosure statement and/or the responses to Plaintiff' s written discovery was received prior to filing this motion.

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5.

Although Big-D has answered Plaintiff' Complaint and Jury Demand, the s

interests of justice require that Plaintiff be allowed to submit its Supplemental and Amended Complaint and Jury Demand. 6. Big-D (as well as its corporate alter ego counterparts) is well aware of the

supplemental and amended factual allegations; there is no surprise or prejudice that will result from Plaintiff filing its Supplemental and Amended Complaint and Jury Demand. 7. Pursuant to D.C.COLO.LCivR 7.1A, counsel for Big-D, Francis J. Hughes,

was contacted before filing this motion and Big-D objects to Plaintiff filing its Supplemental and Amended Complaint and Jury Demand. 8. A copy of Plaintiff' Supplemental and Amended Complaint and Jury s

Demand is filed contemporaneously with this motion. WHEREFORE, Plaintiff respectfully requests that the Court grant this motion and accept Plaintiff' Supplemental and Amended Complaint and Jury Demand as filed. A s proposed form of order is filed herewith.

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Respectfully submitted this 1st day of July, 2005. LEPRINO FOODS COMPANY

By:

s/ Michael G. Bohn One of Its Attorneys Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] Patrick T. Markham, Esq. Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

CERTIFICATE OF SERVICE I hereby certify that on the day 1st day of July, 2005, I electronically filed the foregoing MOTION OF PLAINTIFF FOR LEAVE TO FILE SUPPLEMENTAL AND AMENDED COMPLAINT AND JURY DEMAND ­ AND ­ CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Francis (Frank) J. Hughes [email protected] Patrick Quinn Hustead [email protected]

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Peter J. Ippolito [email protected] Richard Carl Kaufman [email protected] John David Mereness [email protected] Daniel James Nevis [email protected] and I hereby certify that I have served the document to the following non-CM/ECF participants by depositing said document in the United States mail, postage pre-paid, properly addressed to: Federal Insurance Company P.O.Box 1615 Warren, NJ 07061-1615 s/ Cori Atteberry Cori Atteberry, Legal Assistant

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