Free Motion to Amend/Correct - District Court of Connecticut - Connecticut

I Case 3:00-cv-00678-SRU Document 54 Filed 05/O3/2004 Page 1 of 4
I 1 F i t., E D
I UNITED STATES DISTRICT COURT mm! MM “ 3 D 3: I 5 I
I DISTRICT OF CONNECTICUT [I:§_sDI§TRICT COURT
O’KEEFE & ASSOCIATES, INC. I MUJGLPURT. CGM} I
Plaihliff I I I
VS. : CIVIL ACTION NO.
3: O0CVO0678 (SRU)
THEME CO-OP PROMOTIONS, INC. 1 J
Defendant : APRIL (BO, 2004
PLAINTIFF’S MOTION FOR LEAVE TO AMEND I
COMPLAINT AND MEMQRANDUM OF LAW I
Pursuant to Fed.R.Civ.P. 15(a), Plaintiff, O’Keefe 8. Associates, inc. ("O’Kefe”),
moves to amend its Complaint and for leave to file its Second Amended Complaint, l
attached hereto.
Rule 15(a) allows a party to amend the party’s pleading by leave of court, and
"leave shall be freely given when justice so requires? The present amendment seeks to I
amplify the current Amended Complaint dated December 15, 2000 by adding causes of
action that flow from the facts already pleaded and from those which O’Keefe has I
discovered since the action was filed. The present amendment also re-alleges a breach i
of the Covenant of Good Faith and Fair Dealing as per the C0urt’s Order on I
Defendants Motion to Dismiss. There is no prejudice to the Defendant by this
amendment.
Plaintiff’s Second Amended Complaint alleges that Defendant breached its I
express (Count One) and implied (Count Two) contractual obligations to Plaintiff by I
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I Case 3:00-cv-00678-SRU Document 54 Filed 05/O3/2004 Page 2 of 4
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N failing to fuliy compensate Plaintiff as agreed for recruiting, screening and presenting
i candidates which Defendant hired and that Defendant has been unjustly enriched
(Count Four) and is liable to Plaintiff under the theory of Promissory Estoppel (Count l
l Five). l
The Second Amended Complaint also alleged that Defendant breached the \
implied Covenant of Good Faith and Fair Dealing, which is, by law, a part of every
contract. Defendant’s Motion to Disrniss the claim was granted by the Court, without
prejudice to Plaintiff to re—aliege this cause of action if sufficient factual support was
uncovered during the course of discovery. As set forth in the attached Second y
Amended Complaint, discovery has determined that Defendant wrongfully and willfully
refused to pay monies owed under its contracts and agreements with Plaintiff, and
asserted reasons to justify its actions which it knew to be false. Moreover, evidence \
was uncovered that Defendant had made a practice of attempting to avoid its
contractual obligations to recruiters and contractors other than O’Keefe. There is more J
than sufficient evidence that Defendant simply wished to avoid meeting its obligations,
and in an effort to do so, has asserted and continues to assert objections, defenses and
counterciaims having no basis in fact.
The evidence clearly shows that O’Keefe met its contractuai obligations to N
Defendant and recruited, screened and presented qualihed candidates which Defendant
subsequently hired. Contrary to Defendants allegations, the candidates presented by I
A O‘Keefe were atl fully qualified, with a history of successful performance before, during
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N Case 3:00-cv-00678-SRU Document 54 Filed 05/O3/2004 Page 3 of 4 N
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and after their employment with TCP. Any difficulties these employees encountered N
were due to internal problems and management decisions made by TCP, and not due
to any lack of qualifications on the part of the candidates nor any negligent, fraudulent N
or intentional misconduct by O’Keefe. l
As such, Plaintiffs Second Amended Complaint has been amended to allege
further factual support for its claimed breach of the implied Covenant of Good Faith and l
Fair Dealing Count, as well as alleging new causes of actions sounding in Negligent N
Misrepresentation (Count Six), Fraudulent Misrepresentation (Count Seven), Violation
ofthe Connecticut Unfair Trade Properties Act (Count Eight) and Quantum Meruit N
(Count Nine). Q
As Defendant noted in its own Motion for Leave to Amend Counterciaim dated N
June 18, 2003, "Under Rule 15(a), amendments to pleadings should be freely given _
when justice so requires? Foman v. Davis, 371 U.S. 178, 183 (1962). As Plaintiffs
Second Amended Complaint "mereiy amplities the ailegations already raised in the E
original" Complaint, the Motion to Amend should be granted. N
i
THE PLAINTIF F N
Francis D. Burke
MANGINES & BURKE, LLC
1115 Main Street, Suite 708
Bridgeport, CT 06604
(203) 336—0887
Fed. Bar No. ct18688
.... "

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Case 3:00-cv-00678-SRU Document 54 Filed 05/O3/2004 Page 4 of 4 I
CERTIFICATION
This is to certify that a copy of the foregoing has been sent, via U.S. Mail, \
postage prepaid, this Ck · day of April 2004, to:
David A. Ball, Esq. N
Cohen and Wolf, PC 1
1115 Broad Street é
Bridgeport, CT 06604 · I
K. nai'? -
Francis D. Burke _

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