Free Reply in Support of Motion - District Court of Arizona - Arizona

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THE LAW OFFICES OF ROBERT M. COOK

Robert M. Cook (SBN 002628) Kip M. Micuda (SBN 011921) THE LAW OFFICES OF ROBERT M. COOK, PLLC Missouri Commons - Suite 185 1440 E. Missouri Avenue Phoenix, Arizona 85014 Telephone: (602) 285-0288 Facsimile: (602) 285-0388 E-mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert A. Cuevas, Plaintiff, v. John Miranda, et al. Defendants. Plaintiff, by and through his undersigned attorney, hereby replies concerning his Motion for Leave to File Second Amended Complaint. Plaintiff urges this Court to allow an amendment of the complaint. This reply is supported by the Memorandum of Points and Authorities attached hereto and incorporated herein. RESPECTFULLY SUBMITTED this 16th day of June, 2008. THE LAW OFFICES OF ROBERT M. COOK, PLLC By /s/ Robert McConnell Cook, Sr. Robert McConnell Cook, Sr. Kip M. Micuda Attorneys for Plaintiff Plaintiff's Reply Re: Plaintiff's Motion for Leave to File Second Amended Complaint Case No:2:04-cv-00476-PGR

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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

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I certify that on this 16th day of June, 2008, I filed the foregoing document via CM/ ECF, with:
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THE LAW OFFICES OF ROBERT M. COOK

The United States District Court District of Arizona

By: /s/ Vicki L. Morgan Vicki L. Morgan

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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

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MEMORANDUM OF POINTS AND AUTHORITIES
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Plaintiff has moved this Court for leave to amend the instant complaint because the
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First Amended Complaint requires clarification and correction, and it should accurately
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reflect the evidence that will be presented to this Court. Defendants John Miranda, City of
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San Luis and Alex Ruiz object.1 Contrary to Defendants protestations, the filing of a second amended complaint will

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prejudice Defendants little, if any; there has not been undue delay here; there is no bad faith;
THE LAW OFFICES OF ROBERT M. COOK

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and the amendments are not futile.
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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

As to the first two claims of prejudice and undue delay, Defendants' objections are
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nonsense. The Second Amended Complaint clarifies the claims and reduces the number of
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claims. Defendants should welcome such a pleading rather than complain that their time
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on their motion to dismiss was not as fruitful as they expected. Defendants' contention that
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the proposed amended complaint unduly prejudices them ignores the facts. As to delay, no
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discovery has been conducted in this case. While Defendants claim they intended no
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response to the first motion to amend, they fail to explain here why that motion made sense
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to them, yet the instant motion does not, while it achieves more of what the first motion
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intended. Defendants could have been defaulted here, but were not. Their claims of
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prejudice and undue delay simply are not credible.
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Defendants' assertion of bad faith is also nonsense. Indeed, Defendants' counsel
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should be more circumspect when making such assertions, particularly when an opposing
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Notably, Defendants assert that they did not object to Plaintiff's motion for leave to file an amended complaint filed in January 2008. What Defendants fail to mention is that, once the amended complaint was filed, they failed to timely respond to it. Rather than pursue default, Plaintiff's counsel wrote to Defendants' counsel notifying him of the status of the case.
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THE LAW OFFICES OF ROBERT M. COOK

colleague advises him his client is in default, as a professional courtesy, rather than file for default. Pleadings may be amended any time before a judgment is granted. Plainly, Defendant's motion to dismiss raised issues that Plaintiff needed to address in the pleading. Those issue are addressed in the instant motion and proposed pleading. Suggesting there is bad faith here oversteps and states way too much. Finally, Defendants claim the proposed amendments are futile. Defendants' assertion is vague and conclusory. Defendants fail to give a single credible explanation supporting their conclusion. The only thing Defendants state, in a footnote, to support their assertion is that Plaintiff merely asserts in the proposed pleading that there was no probable cause for his arrest, charging and prosecution. Defendants misstate the pleading. Plaintiff asserts that he had legal authority to do what he did. The pleading even cites the authority. To be arrested, charged and prosecuted for action that Plaintiff had legal authority to engage in supports a claim that there was no probable cause for his treatment by Defendants. Plaintiff committed no crime; indeed, there was no crime. Defendants' contention in light of Plaintiff's allegations is spurious. Accordingly, Plaintiff urges this Court to grant his Motion for Leave to File a Second Amended Complaint. RESPECTFULLY SUBMITTED this 16th day of June, 2008.

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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

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THE LAW OFFICES OF ROBERT M. COOK, PLLC
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By /s/
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Robert McConnell Cook, Sr. Robert McConnell Cook, Sr. Kip M. Micuda Attorneys for Plaintiff

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