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

Case 1:03-cv-02435-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02435-PSF-PAC (Consolidated with 04-cv-00639-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, Secretary, Department of Veterans Affairs, Defendant.

Civil Action No. 04-cv-00639-PSF-PAC (Consolidated with 03-cv-02435-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. ANTHONY J. PRINCIPI, et al., Defendants.

DEFENDANT'S MOTION TO AMEND ANSWER, AND PROPOSED AMENDED ANSWER

Defendant Anthony J. Principi, Secretary, Department of Veterans Affairs, by and through undersigned counsel, hereby moves pursuant to Rule 15(a) of the Federal

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Rules of Civil Procedure ("Fed. R. Civ. P.") to amend his answer, filed 14 days ago on November 25, 2005, to add a counter-claim for restitution against plaintiff. Although Rule 15(a) ordinarily allows a defendant 20 days to amend an answer, in this case the Scheduling Order set a deadline of December 1, 2005 for amendment of pleadings. Defendant respectfully submits that good cause exists to allow such amendment, as defendant shows below. DISCUSSION These consolidated cases were filed in late 2003 and early 2004. On March 14, 2005, defendants filed motions for summary judgment in each case after the conclusion of discovery. See Docket No. 75. On August 5, 2005, the Court granted plaintiff's motion for appointment of counsel, see Docket No. 141, and on October 18, 2005, reopened discovery and permitted plaintiff to file an amended complaint in this matter by November 2, 2005. See Docket No. 159. The Court set short dates for the completion of all significant events in this case at the October 18, 2005 hearing, including the submission of a proposed amended scheduling order. Id. In particular, the Court ordered that the parties submit a proposed amended scheduling order with the Court by November 14, 2005. Plaintiff filed an Amended Complaint on November 2, 2005 but then, because the Prayer for Relief in the Amended Complaint did not contain certain clauses, plaintiff moved for leave to file a Second Amended Complaint on the grounds that those clauses

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were inadvertently omitted from the document. See Docket No. 164 at 2. Notably, defendant did not oppose plaintiff's request to amend her complaint. See id.1 This Court granted plaintiff's motion, and plaintiff's Second Amended Complaint was filed on November 9, 2005. See Docket Nos. 168, 169. Five days later, on November 14, 2005, the parties submitted their proposed scheduling order to the Court, proposing December 1, 2005, as the deadline for amendment of pleadings. See Docket No. 170 at 4. This Court filed the scheduling order on November 15, 2005. See Docket No. 172. Defendant filed its answer to the Second Amended Complaint on November 25, 2005. See Docket No. 179. Pursuant to Fed. R. Civ. P. 15(a), defendant would ordinarily have 20 days after the filing of its answer to file an amended answer, and as a consequence defendant's proposed amended answer, if filed on December 9, 2005 ­ only 14 days after filing its answer ­ would be timely. However, due to the Scheduling Order, defendant was left with only six days to amend its answer. In defendant's answer to the Second Amended Complaint, defendant identified a number of defenses related to the fact that plaintiff entered into and signed a written administrative settlement agreement on April 2, 1997, resolving all issues in plaintiff's Second Amended Complaint. Pursuant to the written administrative settlement

Plaintiff also moved for an extension of time to respond to defendant's written discovery. See Docket No. 181. Defendant did not oppose that motion either. See id. at 2. 3

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agreement, plaintiff received the amount of $66,000 ($50,000 plus $16,600 as attorneys fees). See Docket No. 179 (defendant's Answer) at 24-25. As a result of plaintiff's contention that the settlement agreement was entered into under coercion and duress, the EEOC ultimately determined that the settlement agreement was invalid. Nevertheless, plaintiff has retained the $66,600 which she retained as consideration for the invalid agreement. Defendant inadvertently neglected to include a counter-claim against plaintiff for recovery of the $66,600 paid to plaintiff to administratively settle her case. Defendant consequently seeks to amend its answer to bring a counterclaim against plaintiff for restitution in the amount of $66,600, plus interest. Rule 15 of the Federal Rules of Civil Procedure concerns amendment of pleadings and provides, in relevant part: A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one which no responsive pleading is permitted and the action has not placed on the trial calendar, the party may so amend it at any time within 20 days after it has been served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party . . . . This rule also provides that a party's request to amend his pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a).2 Although courts are expected to heed this mandate, Forman v. Davis, 371 U.S. 178, 182 (1962), the matter is still committed to

Defendant notes that Fed. R. Civ. P. 13(f) also specifically allows for omitted counterclaims. Rule 13(f) provides that, "[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment." 4

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the Court's sound discretion. Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10 th Cir. 1987). "Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10 th Cir.1993) (citing Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10 th Cir.1993)). Defendant submits that it has not unduly delayed seeking to amend its answer here. Indeed, but for the Court's Scheduling Order, defendant's proposed amendment would clearly be timely under Fed. R. Civ. P. 15(a). Plaintiff cannot show prejudice, bad faith, dilatory motive or futility of amendment. Defendant notes that plaintiff opposes this motion. WHEREFORE, defendant respectfully requests that its proposed amended answer, attached to this motion at Exhibit A, be filed with the Court. Dated this 9th day of December, 2005. Respectfully submitted, WILLIAM J. LEONE United States Attorney s/ Michael C. Johnson MICHAEL C. JOHNSON Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 5

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E-mail: [email protected] Counsel for Defendant CERTIFICATE OF SERVICE I hereby certify that on this 9 th day of December, 2005, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Counsel for Plaintiff: Elizabeth Kapukihilani Pietsch Email: [email protected] Dugan William Edward Bliss Email: [email protected] Sean Robert Gallagher Email: [email protected]

I hereby certify that on this 9 th day of December, 2005, I served the foregoing document via electronic mail on the following non-CM/ECF participant: Agency Counsel: Thomas Kennedy [email protected]

s/ Michael C. Johnson MICHAEL C. JOHNSON Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0134 FAX: (303) 454-0408 E-mail: [email protected]

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