Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

Case 1:07-cv-00855-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) LOUIS P. TORTORELLA, ) WAYNE R. GUTIERREZ, ) JOSEPH P. MURPHY, and ) STEVEN M. LITTLEFIELD ) ) Plaintiffs ) v. ) ) UNITED STATES OF AMERICA ) ) Defendant ) ____________________________________)

NO. 07-855-C Judge Nancy B. Firestone

PLAINTIFFS' FIRST MOTION TO AMEND COMPLAINT (ASSENTED) Plaintiffs through counsel respectfully move this Court pursuant to RFCF 15(a) for an order approving Plaintiffs' amendment of Plaintiffs' transfer complaint filed with this Court December 28, 2007, to reflect the substitution of the executor of the Estate of Louis P. Tortorella (Mildred Tortorella), for the named Plaintiff Louis P. Tortorella, a deceased person. The Defendant's counsel has no objection to the relief requested. As grounds for the relief requested, Plaintiffs state as follows:

1.

With the exception of the caption, the Plaintiffs' transfer complaint filed with this

Court December 28, 2007, is the same complaint (form and content) applicable among the parties at the time of entry of the transferring court's order transferring this case to this Court. (US District Court (Boston) No. 06-10054-RGS ("Transferring Court"), Case Document/Docket No. 8 (March 2, 2006).

Case 1:07-cv-00855-NBF

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2.

The named Plaintiff Louis P. Tortorella is deceased. Shortly following his death

the State of New Hampshire, Hillsborough County Probate Court appointed the deceased's sister Mildred Tortorella, of 29 Ashton Street, Everett, Massachusetts) as an executor of the deceased's estate (Hillsborough Probate Court Case No. 2006-1088).

3.

On January 17, 2008 Plaintiffs' counsel discussed the question of substitution of

the Executor of the Tortorella estate, for the deceased's name as a party to this case, and following that discussion the Defendant's attorney stated that the Defendant has no objection to amendment of the complaint and the substitution. This agreement was confirmed by electronic mail (see Exhibit A).

4.

The parties have expressed interest in exploring possible solution of this dispute

through the Court's ADR process (Wiese, J designated by Case Document No. 4). This may obviate further proceedings. If not successful, this case shall require a scheduling conference at which time finalization of pleadings shall be a topic. Plaintiffs have left the transfer complaint in its original District Court form purposefully, so that a completely (and hopefully single) amendment of the complaint to a final form of pleading for the duration, may be successfully achieved by consensus among the parties and the Court.

5.

Until such time, Plaintiffs respectfully request an order of this Court approving

the relief requested, as assented by the Defendant, so that the identities of all parties as they currently exist, is properly reflected in the record.

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WHEREFORE, Plaintiffs respectfully request an order of this Court approving the substitution of Mildred Tortorella, Executor of the Estate of Louis P. Tortorella (having a legal address care of R. Pennington, Esq., Fernald, Taft Falby & Little, 14 Grove Street, Peterborough, NH 03458), as a named Plaintiff in this case, and further that the Plaintiffs' transfer complaint docketed December 28, 2007, be amended by restatement to be presented by the Plaintiffs to this Court for approval, reflecting such substitution of the Estate as the real party in interest. Respectfully Submitted, LOUIS P. TORTORELLA, WAYNE R. GUTIERREZ, JOSEPH P. MURPHY and STEVEN M. LITTLEFIELD Plaintiffs, By Their Attorneys /S/ John Shek

________________________________ JOHN SHEK, ESQ. Weston Patrick, P.A. 84 State Street, 11th Floor Boston, MA 02109 (617) 742-9310 (MA BBO# 457330)

CERTIFICATION OF ASSENT RECEIVED Plaintiffs' Attorney John Shek and US Department of Justice Attorney Douglas K. Mickle conferred on January 17, 2007, and agreed that the Plaintiffs' motion and request for an order approving substitution and amendment of complaint, is reasonable, and that the foregoing Motion may reflect his assent on behalf of the Defendant. /S/ John Shek ________________________________ JOHN SHEK, ESQ.

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EXHIBIT A
_____________________________________________________________

-------- Original Message -------Subject:RE: USCFC Case No. 07-855 C Date:Thu, 17 Jan 2008 16:08:26 -0500 From:Mickle, Douglas (CIV) To:John Shek CC:Dunlap, Jerrett W MAJ OTJAG

I will submit the memo today for approval. It has a few layers of review, but I will definitely get the process going. We do not object to substituting the executor of Mr Tortorella's estate, and if you have to amend the complaint, we do not object.