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

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David B. Rosenbaum, Atty. No. 009819 Dawn L. Dauphine, Atty. No. 010833 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, AZ 85012-2794 Telephone: (602) 640-9000 [email protected] [email protected] Michael L. Banks, Pro Hac Vice William J. Delany, Pro Hac Vice Azeez Hayne, Pro Hac Vice MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5000 [email protected] [email protected] [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs, vs. Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants. Defendants hereby move the Court, pursuant to Federal Rule of Civil Procedure No. CV04-0424 PHX ROS

MOTION FOR LEAVE TO FILE AMENDED ANSWER

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15(a), for leave to amend their Answer. For the reasons set forth below, Defendants respectfully request that the Court grant them leave to file and serve the proposed Amended Answer and Affirmative Defenses to Plaintiffs' Amended Complaint, a copy of
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which was submitted to the Court in accordance with Local Rule 15.1(a)(2). MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION When Defendants filed their Answer, this litigation was limited to the claims of the

six named Plaintiffs. On September 7, 2006, this Court granted Plaintiffs' motion for class certification. Before the parties proceed to merits discovery regarding a class that may exceed 10,000 individuals, Defendants request leave to file an Amended Answer amplifying their existing affirmative defenses and adding several additional defenses. The Federal Rules express a strong policy in favor of liberally allowing amendments. Because class wide merits discovery has not begun and discovery is ongoing, the proposed amendment will not prejudice Plaintiffs. Nor is there any evidence of any other factor that would justify denying Defendants leave to amend their pleading. Thus, for the reasons set forth below, Defendants request that the Court grant them leave to file the proposed Amended Answer and Affirmative Defenses.
II.

ARGUMENT
A.

The Court Should Grant Defendants Leave To File An Amended Answer and Affirmative Defenses

Defendants seek leave to amend their answer to amplify their existing affirmative defenses and to plead several additional affirmative defenses. The Federal Rules of Civil Procedure set forth a liberal standard for amending pleadings. Fed. R. Civ. P. 15(a) ("leave [to amend] shall be freely given when justice so requires."); Breier v. N. Cal. Bowling Proprietors' Assoc., 316 F.2d 787, 789 (9th Cir. 1963) (Rule 15(a) "`was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result'"). Indeed, the Ninth Circuit has noted: "on several occasions . . . that the `Supreme Court has instructed the lower federal courts to heed carefully the command of Rule 15(a) . . . by freely granting leave to amend when justice so requires.'" . . . Thus, "[r]ule 15's policy of favoring amendments to pleadings should be applied with `extreme liberality.'"
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DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); see also Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999) (noting that the Ninth Circuit reviews denial of leave to amend "strictly in light of the strong policy permitting amendment"). As a result, leave to amend should be granted unless (1) the amendment would cause undue prejudice to the non-moving party, (2) the amendment was sought in bad faith, (3) the amendment would be futile, or (4) the moving party unduly delayed in seeking leave to amend. See Bowles, 198 F.3d at 757-58; DCD Programs, 833 F.2d at 186. The non-moving party bears the burden of showing prejudice, and "delay, by itself, is insufficient to justify denial of leave to amend." DCD Programs, 833 F.2d at 186-87. An amendment "is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (finding that district court abused its discretion by refusing to grant defendant leave to amend its answer to include an affirmative defense). Here, the Court should grant Defendants leave to amend their pleading because Plaintiffs cannot demonstrate any of these factors. Granting Defendants' motion will not prejudice Plaintiffs, as discovery in this case is still ongoing.1 Indeed, the Court has not yet entered a Rule 16 scheduling order. Furthermore, although Plaintiffs have served written discovery, they have not yet taken any depositions. Allowing Defendants to amend their pleading, therefore, will not impede the parties from complying with the Court's forthcoming scheduling order. Similarly, Plaintiffs cannot demonstrate any undue delay. Defendants filed their motion well within the period each party proposed for amended pleadings. (Doc. # 246.) Nor can Plaintiffs demonstrate that Defendants filed
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The fact that the parties have already conducted some discovery does not preclude Defendants from asserting additional affirmative defenses. See, e.g., Calmar, Inc. v. Emson Research, Inc., 850 F. Supp. 861, 865 (C.D. Cal. 1994) (granting defendant's motion for leave to amend its answer to assert additional affirmative defenses where discovery was ongoing, and despite the fact that the complaint was filed approximately fifteen months earlier); Ragin v. Harry Macklowe Real Estate Co., 126 F.R.D. 475, 478 (S.D.N.Y. 1989) (granting defendant's motion for leave to amend where discovery had commenced but depositions were not yet complete).
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their motion in bad faith, or that the proposed amendments would be futile. Accordingly, Defendants respectfully request that the Court grant them leave to file the proposed Amended Answer.

OSBORN MALEDON, P.A. By: /s/ Azeez Hayne_____________________ David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, AZ 85012-2794 Michael L. Banks (Pro Hac Vice) William J. Delany (Pro Hac Vice) Azeez Hayne (Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Attorneys for Defendants

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CERTIFICATE OF SERVICE I do certify that on November 21, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Susan Martin Martin & Bonnett P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Attorney for Plaintiff

/s/ Azeez Hayne Azeez Hayne

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