Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-00389-***-|\/IPT Document 22 Filed 05/O2/2005 Page 1 of 4 h
IN THE UNITED STATES DISTRICT COURT
I FOR THE DISTRICT OF DELAWARE
)
PSA, inc. )
)
Plaintiff )
)
v. ) CIVIL ACTION No. 04-389~KAJ
)
Inter—World Communications, Inc., )
Corpserve, S.A. de C.V., World Center )
of Video Conferences, S.A. de C.V., )
Dean Hollis Velazco, and John Reinke, )
)
_ Defendants. )

MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT AND TO AMEND CAPTION
ETS Payphones, Inc., the successor-in—interest to plaintiff PSA, Inc. (the
"Plaintiff"), pursuant to Federal Rule of Civil Procedure I5 and this Court’s scheduling order
dated February 4, 2005, requests leave to amend the caption of the complaint and to file its
amended complaint (the "Amended Compiaint") against Inter-World Communications, Inc.
("lWCI"), Corpserve, S.A. de C.V., World Center of Video Conferences, S.A. de C.V., Dean
Hollis Velazco ("I~Ioliis"), and John Remke (collectiveiy, the "Defendants").
Basis for Relief
1. This is an action for turnover of property of the estates, fraudulent
conveyance, breach of contract, and conversion of assets ofthe estates. The Plaintiffs demand an
accounting and monetary damages of no less than $9 million.
2. In the Plaintiffs original complaint (the "Coniplaint"), the Plaintiff
alleged, among other things, that defendants Inter-World Communications, Inc., Dean Hollis
3749716
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Velazco and John Rernke breached contracts relating to the "formation, funding and operation of
a joint business venture involved in the Mexican pay telephone business? Complaint, at 'll 48.
3. Based on discovery to date, the Plaintiff has amended the Complaint to set
forth with more particularity the contracts thus far discovered related to the formation, funding
and operation of the joint venture entity that were breached by various defendants, and the
specific breaches of those contracts. A copy of the Amended Complaint is attached as Exhibit
"A," and a redline of the Compiaint against the Amended Complaint is attached as Exhibit "B.”
4. In addition, the Amended Complaint restyles the Complaint to designate
as plaintiff ETS Payphones, Inc., the successor-in~interest to PSA, Inc. under the First Amended
Joint Reorganization Plan Submitted by the Debtors and the Official Committee of Unsecured
Creditors dated Juiy 25, 2001 (the “P1an”), which was confirmed by the United States
Bankruptcy Court for the District of Delaware on November 14, 200i.E
‘ 5. Accordingly, Plaintiff further requests that the caption be amended to
remove PSA, Inc. and to insert ETS Payphones, inc. so that the caption shall read as follows:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ETS Payphones, Inc., )
Plaintiff, )
v. ) CWIL ACTION No. 04-389—KAJ
Inter-World Communications, inc., )
Corpserve, S.A. de C.V., World Center )
of Video Conferences, S.A. de C.V., )
Dean Hollis Velazco, and John Rernke, )
Defendants. )

1 The Plan was confirmed by the Bankruptcy Court on November 14, 2001, prior to the date of the Complaint, but
the Plan did not become effective until November 5, 2002, two months after the Compiaint was fiied. Thus, PSA
Inc. was properly the plaintiff at the time the Complaint was tiled, and could properly refer to itself as a "Debtor" in
the Compiaint. .
2
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Case 1:04-cv-00389-***-MPT Document 22 Filed 05/O2/2005 Page 3 of 4
6. Federal Rule of Civil Procedure i5(a) provides that leave to amend a
complaint "siiall be freely given when justice so requires? As the Third Circuit instructed in
United States v. Thomas, 221 F.3d 430, 435 (3d Cir. 2000), “The purpose of Ruie 15 ‘is to
provide maximum opportunity for each claim to be decided on its merits rather than on
procedural technicalities. This is demonstrated by the emphasis Rule E5 places on the permissive
approach that the district courts are to take to amendment requests, no niatter what their character
may be[.] "’
7. While the Plaintiff is not stating any cause of action not raised in its
Complaint, the Amended Complaint better reflects the correct name of the Plaintiff and specifies
some of the specific contracts giving rise to its original claims against defendants EWCI, Hollis
and Remke.
8. Because discovery is ongoing and some ofthe relevant contracts are not in
the possession of the Plaintiff, the Plaintiff reserves its rights to request amend its complaint to
conform to the evidence adduced at or prior to triai.
3
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Prayer for Relief
For the foregoing reasons, the Plaintiff requests that the Court enter the attached
order granting leave to amend the Complaint.
This 29m day ofApri1, 2005.
Jonathan W. Jordan
King & Spalding LLP
19l Peachtree Street
Atlanta, Georgia 30303
Telephone: (404) 572-4600
Facsimile: (404) 572-5149
—AND-
Erengan Linehan Shannon (N o. 3136)
Sean M. Beach (Bar No. 4070)
Young Conaway Stargatt & Taylor, LLP
The Brandywine Building
1000 N. West Street
Wilmington, Delaware) 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
G 4
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