Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1 :04-cv-01268-***-MPT Document 84 Filed O1/10/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter Il
I)
THE IT GROUP, INC., et at, ) Case No. O2-10118 (MFW)
I
Debtors. ) Jointly Administered
)

IT LITIGATION TRUST, )
)
Plaintiff, )
)
v. ) Civ. A. No. O4—CV—l268 (KAJ)
I
DANIEL A. D’ANIELLO, FRANCIS J. HARVEY,)
JAMES C. MCGILL, RICHARD W. POGUE, )
PHILLIP B. DOLAN, E. MARTIN GIBSON, )
ROBERT P. PUGLIESE, CHARLES W. )
SCHMIDT, JAMES DAVID WATKINS, )
ANTHONY J. DeLUCA, HARRY J. SOOSE, )
THE CARLYLE GROUP, THE CARLYLE )
GROUP L.L.C., CARLYLE PARTNERS II, L.P., )
CARLYLE SBC PARTNERS II, L.P., CARLYLE )
INTERNATIONAL PARTNERS II L.P., )
CARLYLE INTERNATIONAL PARTNERS III, )
C/S NTERNATIONAL, PARTNERS, CARLYLE )
INVESTMENT GROUP, L.P., CARLYLE-IT )
NTERNATIONAL, PARTNERS, LP, )
CARLYLE-IT INTERNATIONAL PARTNERS II, )
L.P., CARLYLE-IT PARTNERS L.P., )
and T.C. GROUP, L.L.C., )
)
Defendants. )

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION
FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
Plaintiff, The IT Litigation Trust ("the Trust"), through counsel, respectfully requests that
the Court grant it leave to tile a Second Amended Complaint. Federal Civil Rule l5(a) provides
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Case 1:04-cv-01268-***-MPT Document 84 Filed O1/10/2006 Page 2 of 3
that "leave shall be freely given when justice so requires." Fed. R. Civ. P. l5(a). Additionally,
if "a complaint is subject to a Rule l2(b)(6) dismissal, a district court must permit a curative
amendment unless such an amendment would be inequitable or futile" /l/$2*011 ir Pur/cer, 363
F.3d 229, 235 (3d Cir. 2004). l\/loreover, the district court must provide the plaintiff with this
opportunity even if the plaintiff does not seek leave to amend. Id. As a result, even when a
plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless
the district court finds that amendment would be inequitable or futile, the court must inform the
plaintiff that he has leave to amend the complaint within a set period of time.
In the present case, the requested amendments are not inequitable or futile. First,
Defendants have not filed answers to the Amended Complaint, and have asked the Court to
certify a question of law to the Delaware Supreme Court. Allowing the amendment will make
the certification issue moot. Further, any additional briefing that results from the filing of an
amended pleading would not cause any more time delays than that which would be caused by
having to brief the issue before the Delaware Supreme Court. Second, the request to amend is
not futile. The deposition of Defendant Harvey provides particularized facts that establish the
board was dominated and controlled by the Carlyle Defendants. This admission, when
incorporated into the pleadings, satisfies not only the pleading requirements of Tower Air, but
also Delaware state law, which renders the Defendants’ request for certification moot.
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Case 1:04-cv-01268-***-MPT Document 84 Filed O1/10/2006 Page 3 of 3
CONCLUSION
For the foregoing reasons, Plaintiff respectnilly requests that the Court grant its Motion
for Leave to Amend.
Dated: January 10, 2006 THE BAYARD FIRM
ee‘‘ ” /
,/“" , *7 Z/*7 _ ,
J eftiey . Schlerf (No. 3047)
Eric M. Sutty (No. 4007)
222 Delaware Avenue, Suite 900
Wilmington, Delaware 19801
(302) 655-5000
- and -
STRAUSS & TROY
Richard S. Wayne
Thomas P. Glass
John M. Levy
· The Federal Reserve Building
150 E. Fourth Street
Cincinnati, Ohio 45202-4018
(513) 621-2120
Fax: (513) 629-9426
CO-COUNSEL TO THE
IT LITIGATION TRUST
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