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

Case 3:00-cv-00720-JCH

Document 118

Filed 01/26/2007

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT WILLIAM CONNELLY, Plaintiff, v. DAVID COSGROVE, et al. Defendants. : : : : : : : : : : :

CIVIL ACTION NO. 3:00 CV 720 (JCH)

JANUARY 25, 2007

CONSENT MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT Plaintiff William Connelly hereby moves pursuant to Federal Rules of Civil Procedure 10(a), 15, 21 and 41(a)(2) for leave to file his Third Amended Complaint in the form attached hereto. In support of this motion, plaintiff states as follows: 1) Plaintiff commenced this case against numerous defendants in their individual and official capacities. Among the claims asserted in his initial complaint was a claim against Virginia Golemba seeking relief against ex post facto application of Connecticut Public Act 90-261 (the "Ex Post Facto claim"); 2) As a result of a lengthy and complex procedural history, the claims in the case have changed and narrowed; 3) In November 2006, the undersigned was appointed as pro bono counsel to plaintiff; 4) As a result of counsel's investigation and consultation with plaintiff, plaintiff is prepared at this time to withdraw all of his claims in the case except the Ex Post Facto claim;

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Case 3:00-cv-00720-JCH

Document 118

Filed 01/26/2007

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5) But for misjoinder of parties, plaintiff would have asserted his Ex Post Facto claim against the Commissioner of the Connecticut Department of Correction (the "Commissioner") in her official capacity. Today, the Commissioner is Theresa Lantz; 6) Accordingly, plaintiff seeks to withdraw his claims against all of the remaining defendants in the case and to substitute the Commissioner in lieu of Golemba as defendant with respect to the Ex Post Facto claim; 7) To accomplish these ends, plaintiff seeks (a) to correct the misjoinder pursuant to Rule 21 by naming the Commissioner as a defendant in her official capacity, (b) to withdraw his claims voluntarily against all other defendants remaining in the case pursuant to Rule 41(a)(2), (c) to amend his Ex Post Facto claim pursuant to Rule 15 to set it on a clear footing, superceding all prior allegations in the case, and (d) to amend the case caption pursuant to Rule 10 to reflect these changes; 8) Plaintiff's counsel has conferred with Assistant Attorneys General Robert Fiske and Steven Strom, who consent to the granting of the relief requested herein, and who have agreed to accept service by mail of the Third Amended Complaint in the form attached hereto on behalf of the Commissioner; 9) The Third Amended Complaint will substantially narrow the issues in the case and clarify the Ex Post Facto claim. This will also narrow the scope of the discovery necessary to resolve the case. In addition, it will allow defendants' pending motion for summary judgment to be denied as moot; and 10) The Third Amended Complaint will also streamline the schedule adopted by the Court on December 20, 2006. If the Court grants this motion, it will only be

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Case 3:00-cv-00720-JCH

Document 118

Filed 01/26/2007

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necessary for the Commissioner to move for summary judgment, if appropriate, within 30 days of the completion of discovery. In addition, the Court has set a status conference for April 25, 2007. WHEREFORE, for the foregoing reasons, Plaintiff William Connelly respectfully requests that the Court order the Third Amended Complaint docketed in the form attached, change the caption of the case to reflect the parties listed on the proposed Third Amended Complaint, and dismiss the claims against all defendants other than the Commissioner pursuant to Rule 41(a)(2). PLAINTIFF, WILLIAM CONNELLY By: ______/s/ Jonathan B. Tropp___________ Jonathan B. Tropp (ct11295) [email protected] Catherine Dugan O'Connor (ct17316) [email protected] William C. Mercer (ct26526) [email protected] DAY PITNEY LLP One Canterbury Green Stamford, CT 06901 Tel: (203) 977-7300 Fax: (203) 977-7301 His Attorneys

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was mailed, by U.S. Mail, First Class Postage Prepaid on January 25, 2006, to the following: Robert B. Fiske III Steven Strom Assistant Attorneys General 110 Sherman Street Hartford, CT 06105 /s/ Jonathan B. Tropp__________ Jonathan B. Tropp
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