Case 3:02-cv-02200-CFD Document 132-3 Filed 02/25/2008 Page 1 Big? 2 Of`4
Not Reported in F.Supp.2d · ‘ Page l
. Not Reported in F.Supp.2d, 2004 WL 413268 (D.Corm.)
. (Cite as: Not Reported in F.Supp.2d)
I-I amended complaint to add an ERISA count. In
Callahan v. Unisource Worldwide, Inc. support of his motion, the plaintiff argues that this
D.Conn.,2004. added count is similar to the ERISA count in the
i Only the Westlaw citation is currently available. case of Paneccasio v. Unisouree Worldwide, et al,
United States District Court,D. Connecticut. 3:01CV2065(CFD), which has virtually identical
William E. CALLAI-IAN, Plaintiff] defendants and counsel. He also argued that leave
v. to file the amendment had been anticipated by the
UNISOURCE WORLDWIDE, INC., et al., parties since this Court's ruling on motions to
Defendants. dismiss on March 27, 2003. Finally, he argued that
No. Civ.A. 3:01CV1205CFD. there is no prejudice to the defendants by permitting if
the amended complaint.
ree. 24, 2004.
Andrew B. Bowman, Law Offices Of Andrew rf
Bowman, Westport, CT, for Plaintiff. A motion to amend is governed by Rule 15 of the
Felix J. Springer, Day, Berry & Howard-Htfd-CT, Federal Rules of Civil Procedure. Rule l5(a) ji
Patrick M. Fahey, Robert L. Wyld, Shipman & provides that "a party may amend the party's
Goodwin, Hartford, CT, Jennifer L. Sachs, Day, pleading only by leave of the court or by written
Berry & Howard, Stamford, CT, Rayne Rasty, consent of the adverse party; and leave shall be
Atlanta, GA, Joseph J. Costello, Kay Kyungsun Yu, freely given when justice so requires."
Susan Elizabeth Hamilton, Morgan, Lewis & `
Bockius LLP, Philadelphia, PA, for Defendants. A motion for leave to amend the complaint can be
denied, however, if the defendant demonstrates Q
RULING undue delay in filing the amended complaint, undue
‘_ DRONEY, J. prejudice if the amended complaint is permitted, or
*1 Pending before the Court are the following the futility of the amendment. Foman v. Davis, 371
motions: plaintiffs motion for leave to file amended U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
complaint [Doc. # 40], plaintiffs motion to quash "Mere delay, however, absent a showing of bad
[Doc. # 44], defendants' motion to quash [Doc. # faith or undue prejudice, does not provide a basis
47], defe11dants' motion for pemiission to tile for a district court to deny the right to amend." State
motion and memorandum for partial summary Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843,
judgment [Doc. # 50], plaintiffs' motion to 856 (2d Cir.1981). In order to be considered futile,
consolidate for discovery purposes [Doc. # 53], the complaint as amended would fail to withstand a
plaintiffs motion to compel [Doc. # 55], plaintiffs motion to dismiss for failure to state a claim.
motion for extension of time [Doc. # 56], and Dougherty v. Town of North Hempstead Bd of
defendants' motion for extension of time [Doc. # Zoningztppeals, 282 F.3d‘83, 88 (2d Cir.2002).
Where a scheduling order has been entered, as is the
case here, the lenient standard under Rule 15, which
I Motion for Leave to File Amended Complaint provides that leave to amend "shall be freely given," l
[Doc. #40] must be balanced against the requirement under
Rule l6(b) of the Federal Rules of Civil Procedure
The plaintiff tiled a motion for leave to file an that the Court‘s scheduling order "shall not be
© 2007 Thomson/W est. No Claim to Orig. U.S. Govt. Works.
_ Case 3:02-cv-02200-CFD Document 132-3 Filed 02/25/2008 Page 23435* 3 ¤f4
Not Reported in F .Supp,2d Page 2
Not Reported in F.Supp.2d, 2004 WL 413268 (D.Cenn.)
(Cite as: Not Reported in F.Supp.2d) _
modified except upon a showing of good cause." causes of action, common defendants, and common
Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d witnesses.
Cir.2003) (citing Parker v. Columbia Pictures
. Indus., 204 F.3d 326, 339 (2d Cir.2000)). "A A motion to consolidate is govemed by Rule 42(a)
finding of good cause depends on the diligence of of the Federal Rules of Civil Procedure. Rule 42(a)
the moving party."ld. (citations omitted). provides that “[w]hen actions involving a common
question of law or fact are pending before the court .
.. it may make such orders concerning proceedings
b. Discussion therein as may tend to avoid unnecessary costs or
The Court's scheduling order of February 25, 2002
permitted the plaintiff to file an amended complaint Here, both Callahan v. Unisource Worldwide, ei al
` within 30 days of the Court‘s ruling on the motions 3:01CV1205 and Poneccnsio v. Unisource
to dismiss on March 27, 2003, which was April 27, Worldwide, ei al, 3:0lCV2065(CFD) involve
2003. However, the plaintiff tiled the motion for allegations of age discrimination under the Age
leave to amend the complaint on August 8, 2003. Discrimination in Employment Act, both plaintiffs
Although plaintiffs counsel did not fully explain his were employees of Unisource and participants in
reason for the delay in tiling the motion, in the 1991 Deferred Compensation Plan, four
plaintiffs motion for extension of time [Doc. it 56], defendants are common in both cases, the plaintiffs
Attorney Bowman asserted that the extension of are represented by the same counsel, and the
time is sought due to his extraordinary trial defendants are represented by the same counsel. In ;€
. cornmitments over the past eight months in the addition, both cass are at the same stage in
United Stores v. Giordano federal criminal trial. In discovery. As there are corrnnon factual and legal
light of plaintiffs counsel's trial commitments in issues in these two cases, plaintiffs motion to
that case, the Court finds good cause for the delay. consolidate for discovery purposes [Doc. # 53] is
*2 In addition, the Court concludes that the
allegations of the proposed amended complaint are
sufficient to withstand a motion to dismiss for HL Other Pending Motions [Docs. #44, 47, 50, 55,
failure to state a claim. Thus, the proposed 56, 62]
amendment is not fut:ile.FNl Finally, the Court
`fmdg that the defeudums will suffer mjnjmu] Plaintiffs motion to quash subpoena duces tecurn
prejudice in light of their involvement in discovery [Dee # 44] is DENIED AS MOOT· Defendenlel
in the Paneccasio case. Accordingly, the motion for motion to quash [Doc. # 47] is DENIED.
leave te file amended eqmplajgt [Dee # 40] is Defendants motion for permission to file motion for
· GRANTED. ' partial summary judgment [Doc. # 50] is DENIED
without prejudice to renewal upon completion of
discovery. Plaintiffs motion to compel [Doc. it 55] .5
FN1_ This is without Prejudice te the is GRANTED. Plaintiffs motion for extension of ,t
` defendants filing 3 mgtign for Sunuuery lllI1'1€ [DOC. # 56] is GRANTED, AS MODEIEDZ
judgment eu these issues discovery by all parties must be completed by April ····
30, 2004. De1:"enda11ts' motion for extension of time
IL Motion ro Consolidate for Discovery Purposes [Dee- if 62] is GRANTED, absent vbiccticn-
[Dee; # 53] SO ORDERED.
The plaintiff tiled a motion to consolidate with the
case of Paneccosio v. Unisource Worldwide, ei al, D-C0f111-.2UU4-
3:0lC\/2065(CFD) for discovery purposes based C¤U¤l1¤¤ V·U11iS0¤1“¤e W01‘ldWideiIH¤·
on the similarities in their two cases—con1mon Not Reported in F.Supp.2d, 2004 WL 413268
© 2007 Thomson/W est. No Claim to Orig. U.S. Govt. Works.
Case 3:02-cv-02200-CFD Document 132-3 Filed 02/25/2008 Page 3 H13 4 01°4
Not Reported in F.Supp.2d page 3
Not Reported in F.Supp.2d, 2004 WL 413268 (D.Com1.)
(Cite as: Not Reported in F.Supp.2d) ‘
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.