Opinion
Case No. 1:99cv00621.
May 17, 2006
Ronald E. Seibel (0077296), Tina J. Barrett (0077464), Attorneys for Plaintiff John E. Zeller, SEIBEL LAW OFFICE, Cincinnati, OH.
Plaintiff John E. Zeller by and through counsel, respectfully requests that this Court deny Defendant Centex Construction Company's Motion to Dismiss Plaintiff Second Amended Request, and grant Plaintiff's request for Leave to File a Third Amended Complaint for all the following reasons.
I. INTRODUCTION
On February 15, 2006, this Court granted Defendant Centex's Motion for More Definite Statement and provided Plaintiff with notice of and opportunity to address the deficiencies in Plaintiff's Complaint against Defendant Centex. At the time of this notice and order, and at the time that Plaintiff's Second Amended Complaint was filed, Plaintiff's counsel, Robert F. Croskery, was working full-time in an active duty capacity with the United States Military, and was stationed almost 1,000 miles away. Because of the time constraints placed upon his attorney by the U.S. Military, and the communication barriers that existed due to these constraints as well as the distance between client and counsel, Plaintiff was unable to convey to counsel the information and details needed for the Amended Complaint. As such, Plaintiff's Second Amended Complaint does not contain the information that the Court has requested, and that Plaintiff can, if given full opportunity, provide.
Plaintiff has now retained new counsel. Plaintiff's files have recently been transferred to his new counsel, and Plaintiff and counsel are working diligently to amend the Complaint and provide the information that is needed for this matter to proceed. Plaintiff has the requisite knowledge to properly amend the Complaint; however, recounting information of such complexity and detail to new counsel to amend a Complaint of such complexity requires more than the time thus afforded to Plaintiff if the deficiencies of the Complaint, as outlined by the Court are to be properly and correctly addressed. Plaintiff and counsel will be able to complete this process and provide a properly amended and detailed complaint in less than twenty-one (21) days from the filing of this Motion.
II. ARGUMENT
Plaintiff now requests a mere 21 days to amend his complaint. Although this extra time will delay these proceedings, that delay will be minimal, and the cost to Plaintiff without such opportunity is the loss of his ability to proceed in his action against Defendant Centex. Rule 15 of the Federal Rules of Civil Procedure, and relevant case law support that, under the circumstances, and at this juncture, it is appropriate to grant Plaintiff's request for Leave to File a Third Amended Complaint.
Generally, leave to amend is "freely given when justice so requires. " Keweenaw Bay Indian Cmty. v. State of Michigan, 11 F.3d 1341, 1348 (6th Cir. 1993) (quoting Fed.R.Civ.P. 15(a)). Denial is only appropriate in limited circumstances involving "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also 3 Moore's Federal Practice § 15.14[1] (3d ed. 1997). Ordinarily, delay alone, does not justify denial of leave to amend. Sec. Ins. Co. v. Kevin Tucker Assocs, Inc., 64 F.3d 1001, 1009 (6th Cir. 1995); see also Tefft v. Seward, 689 F.2d 637, 639 n. 2 (6th Cir. 1982) ("Delay that is neither intended to harass nor causes any ascertainable prejudice is not a permissible reason, in and of itself to disallow an amendment of a pleading.").
Without leave to file a Third Amended Complaint, Plaintiff will not have been afforded a full opportunity to address the deficiencies in his Complaint. Plaintiff's former attorney was called to active duty with the United States Military after his representation of Plaintiff began, and at the time the Second Amended Complaint was filed, Plaintiff's attorney was almost 1000 miles away working full-time in his capacity as a military officer. As such, communications between attorney and client were difficult and strained, and a great deal of Plaintiff's knowledge and detailed information did not reach the drafting of the Second Amended Complaint. The circumstances surrounding Plaintiff's request would seem to comport fully with the liberal amendment policy of Rule 15. If justice is to be served, Plaintiff will need the opportunity to amend the Complaint now, with new counsel afforded the time to properly prepare the Amended Complaint.
Plaintiff's request for Leave to File a Third Amended Complaint, if granted, will amount to nothing more than a 21 day delay, and would not be an undue delay. Further, Plaintiff's request is out of necessity, not bad faith or dilatory motive. His change of counsel was necessary given the obligations the United States Military began imposing upon his counsel. Plaintiff resisted changing counsel until it was clear that his counsel's responsibilities of serving active duty as an officer in the Navy were also serving as a bar to effective communication between he and his counsel. Not until the Second Amended Complaint was filed and Defendant had issued a response, did Plaintiff realize that he had not been able to relay his entire story to counsel.
III. CONCLUSION
For all of the foregoing reasons, Plaintiff moves for leave to amend his complaint to comply with the Order of this Court dated February 15, 2006. Further, Plaintiff requests that he be granted twenty-one (21) days to file his Third Amended Complaint.