Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

Document 436

Filed 03/08/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Sheldon Peters Wolfchild, et al. Plaintiffs, Vs. United States, Defendant, and Deborah L. Saul et al., and Individuals Listed on the Following Pages Intervenors. SAUL GROUP MOTION TO AMEND THE CAPTION TO CORRECT CERTAIN MISSPELLED NAMES AND REMOVE JOHN DOE PLAINTIFFS The Saul Group move to Amend the Caption to correct the inadvertent misspelling of three individuals names on the original Complaint in Intervention. The original complaint lists the names of Candy Sullivan (AKA Scott), Cami Scott and Maci Scott. These names were inadvertently spelled incorrectly. The correct spellings are Case No. 03-2684L Judge Charles F. Lettow

Candy Schott (AKA Sullivan), Cami Schott and Maci Schott. Further, the Saul Group previously listed several Plaintiffs by their maiden names. The Amended Complaint corrects those previous designations to show Plaintiffs current names along with their maiden names. The Saul Complaint in Intervention filed by the Saul Plaintiffs was received and filed by the Clerk of the U.S. Court of Federal Claims on June 22, 2006 and all

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Case 1:03-cv-02684-CFL

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allegations, facts and exhibits attached thereto are hereby incorporated herein by this reference. Rule 21 allows for the addition and removal of parties through a motion and order of the court at any stage of an action "on such terms as are just." The Saul Group requests removal of all John Doe plaintiffs. The United States will not be prejudiced with the removal of the John Doe plaintiffs. The removal of certain John Doe plaintiffs will not put the Saul Plaintiffs in any tactical advantage over the United States. The litigation remains in its adolescence. Despite the court's disposition of one breach of fiduciary duty, there remain outstanding summary judgment motions on legal issues of other identified breaches. No final

determination of liability has been made nor final relief determined or sought. Furthermore, there is no scheduling order; no discovery; and the United States, as trustee, has not identified the specific lineal descendants as trust beneficiaries in light of other Intervenors' theories of assertion of how to determine a trust beneficiary. Rule 15(a) states that "a party may amend the party's pleadings only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Courts have recognized "[t]he federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that [the] plaintiff be given every opportunity to cure a formal defect in his pleadings." Thus, the liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. The removal of certain John Doe plaintiffs will not prejudice the defendant, is sought in good faith, will not cause undue delay in the litigation, and is not futile for lack

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Case 1:03-cv-02684-CFL

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of merit and meets the elements of Rule 15(c). The United states is not prejudiced because of the present status of the case; no scheduling order, no discovery, no resolution of pending motions for partial summary judgment on liability, no determination of damages, etc. The United States remains in the same position as before the motion. CONCLUSION Therefore, The Saul Group Motion To Amend the Caption To Correct Certain Misspelled Names and Remove Certain John Doe Plaintiffs should be granted and leave granted to file the submitted Amended Complaint to reflect the changes of parties. Dated this 28th day of February, 2007. /s/Garrett J. Horn Horn Law Office LLC P.O. Box 886 Yankton, SD 57078 (605) 260-4676 Telephone (605) 260-0624 Facsimile Attorney of Record for Intervenors

/s/Creighton A. Thurman Thurman Law Office LLC P.O. Box 897 Yankton, SD 57078 (605) 260-0623 Telephone (605) 260-0624 Facsimile Attorney of Record for Intervenors

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Case 1:03-cv-02684-CFL

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Previously Designated Plaintiffs With Name Corrections First Name Previous Designation Deborah Changed to Deborah Previous Designation Patricia Changed to Patricia Previous Designation Rebecca Changed to Rebecca Previous Designation Candy Changed to Candy Previous Designation Cami Changed to Cami Previous Designation Maci Changed to Maci Previous Designation Toni Changed to Toni Last Name AKA/MAIDEN

Saul Saul Mackey

Iacona Eichberger Iacona

Sullivan White Sullivan

Sullivan Schott

Scott Sullivan

Scott Schott

Scott Schott

Wendzillo Ehlers Wendzillo

Previous Designation Donna Changed to Donna

Wendzillo Krom Wendzillo

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Previous Designation Cynthia Changed to Cynthia Previous Designation Victoria Changed to Victoria Previous Designation Brenda Changed to Brenda Previous Designation Kathryn Changed to Kathryn Previous Designation Judy Changed to Judy Previous Designation Jodi Changed to Jodi

Wendzillo Lingebach Wendzillo

Wendzillo Deming Wendzillo

Mackey Semmler Mackey

Mackey Spelbring Mackey

Mackey Gaston Mackey

Mackey Campbell Mackey

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