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

Case 3:08-cv-00104-JAH-NLS

Document 15-2

Filed 05/30/2008

Page 1 of 3

1 2 3

Russell Piccoli (#004492) 6039 North 41st Place Paradise Valley, Arizona 85253 Phone: (602) 285-5000 Fax: (602) 285-5100 Attorney Pro se

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA RUSSELL PICCOLI, a single man Plaintiff, vs. LIBBY RAUCH, a single woman Defendant. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO AMEND COMPLAINT Date: July 14, 2008 Time: 2:30 p.m. Courtroom 11 Oral Argument Not Required F.R.Civ.P. Rule 15(a) explicitly provides that leave of court to amend a pleading "shall be freely given when justice so requires." As observed by the leading commentators, leave to amend to assert an additional claim based upon the same facts is especially appropriate: "Rule 15(a) amendment is also appropriate for...electing a different remedy than the one originally requested. Technically, these amendments are not necessary since Rule 54(c) provides that regardless of the formal demand for relief, `every final judgment shall grant relief to which the party in his favor it is rendered it is entitled...' However, a party desiring to change the demand for relief may do so under Rule 15(a). This may be the safer course to pursue, particularly if the party intends to ask for an entirely different form of relief and wants to be certain that the court considers that remedy. Amendment also avoids any possibility of CASE NO. 08-CV-104 JAH (NLS)

U:\ATTORNEYS\RXP\Libby\Memorandum of Points and Authorities re Motion for Leave to Amend Complaint (5-30-08).doc

CASE NO 08-CV-104 JAH( NLS)

Case 3:08-cv-00104-JAH-NLS

Document 15-2

Filed 05/30/2008

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

the opposing party will object on the grounds of surprise or prejudice." 6 Wright/Miller/Kane, FEDERAL PRACTICE AND PROCEDURE, § 1474 at 547-9. Here, the only amendment requested is to add an additional claim for relief for breach of fiduciary duty and constructive fraud ­ grounded on the identical facts already alleged in the complaint. The purpose of the amendment is solely to provide notice of a claim for full reimbursement for all losses sustained on the basis of defendant's multiple breaches of fiduciary duty. See e.g., Salahutden v. Valley of California, Inc., 24 Cal.App.4th 555, 29 Cal.Rptr.2d. 463 (1994). As such, leave to amend should be granted. Dated: May 30, 2008. RESPECTFULLY SUBMITTED By: /s/ Russell Piccoli Russell Piccoli [email protected] Attorney Pro se

2
U:\ATTORNEYS\RXP\Libby\Memorandum of Points and Authorities re Motion for Leave to Amend Complaint (5-30-08).doc

CASE NO 08-CV-104 JAH( NLS)

Case 3:08-cv-00104-JAH-NLS

Document 15-2

Filed 05/30/2008

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing paper was served upon all counsel of record by serving them electronically at [email protected] (Sterling Stires). Phoenix, Arizona, this 30th day of May, 2008.

/s/ Russell Piccoli RUSSELL PICCOLI

3
U:\ATTORNEYS\RXP\Libby\Memorandum of Points and Authorities re Motion for Leave to Amend Complaint (5-30-08).doc

CASE NO 08-CV-104 JAH( NLS)