Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01026-KAJ

Document 32

Filed 01/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
) ) NationsRent, Inc., et al., ) ) Debtors ) ___________________________________________) ) NationsRent Unsecured Creditors' ) Liquidating Trust, Perry Mandarino, not ) Personally, but as Trustee ) ) Plaintiff, ) ) v. ) ) Bobcat Company, ) ) Defendant. ) In re: Chapter 11 Case No. 01-11628 thru 01-11639 (PJW) (Jointly Administered)

Oral Argument Requested

Case No. 04-CV-1026 (KAJ) Re: Docket No. 30

REPLY BY DEFENDANT TO PLAINTIFF'S REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO AMEND COMPLAINT AND IN OPPOSITION TO MOTION TO DISMISS Defendant, by its undersigned counsel, hereby submits its Reply to Plaintiff's Motion for Leave to Amend Complaint and in Opposition to Motion to Dismiss (the "Opposition"), and respectfully states as follows: The NationsRent, Inc. bankruptcy case is more than five years old. This

particular preference action was filed over two years ago. Bobcat Company filed an answer twenty-one (21) months ago that clearly states that plaintiff incorrectly sued a non-legal entity. From and after that time, Plaintiff failed to amend its Complaint. Bobcat Company again advised counsel to the Plaintiff by letter dated July 8, 2005 -- over six month ago -- that it had sued the wrong entity. Plaintiff now seeks leave of this Court to amend its Complaint arguing that "[t]he Trustee has acted in good faith without undue delay or dilatory motive in seeking to amend the
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Case 1:04-cv-01026-KAJ

Document 32

Filed 01/06/2006

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Complaint." Opposition at p.1. This conclusory remark is made without the Trustee having any knowledge of the potential prejudice to the Defendant; for example, whether personnel at Bobcat (or the other proposed defendants, Clark Equipment Company and Ingersoll-Rand Company, that Plaintiff seeks to name in its Amended Complaint) with knowledge of this matter have left the employ of this respective companies; whether the documentation relating to this matter remains extant or is as accessible as it was years ago, etc. Plaintiff seeks to name two additional defendants: Clark Equipment Company d/b/a Bobcat Company and Ingersoll-Rand Company. Plaintiffs argue that there is no prejudice to the amendment because "Clark filed the Answer in response to the Complaint and the Defendants have defended the Adversary Proceeding since its commencement." Opposition at p. 5. While Plaintiff is correct that Clark Equipment did file an answer to the Complaint, that is not true for Ingersoll-Rand Company. Moreover, Ingersoll-Rand Company was never served with the Complaint. To the extent leave is given to amend the Complaint, it should be solely as to "Clark Equipment Company", not Ingersoll-Rand Company. Dated: January 6, 2006 Wilmington, Delaware JASPAN SCHLESINGER HOFFMAN LLP By: /s/ Frederick B. Rosner Frederick B. Rosner (3995) 913 North Market Street, 12th Floor Wilmington, Delaware 19801 Telephone: (302) 351-8000 Facsimile: (302) 351-8010 Counsel for Defendant

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