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Case 1:04-cv-01266-SLR Document 162-8 Filed 08/30/2005 Page 1 of 4
EXHIBIT C

Case 1:04-cv-01266-SLR Document 162-8 Filed 08/30/2005 Page 2P31g22 {E4
Wgegizlmt
Not Reported in F Supp 2d Page E
Not Roporicd in F `Suppid, 2602 WE., 1331885
{Cite us: Not Reported in F.Su;1p.2d}
C mcmosamdum opinion amd order to IIIHILBIS
Not Reported in}: Supp 26, 2002 WL l33§SS5 existing and proposed pleading as az "r:~:p1y
Briefs and Other Related Documents "
Oniy the Westlaw citation is currently avzxéhblc
United States District Com, N D Texas, Dallas E
Division
INLINE CORPORATION, Tho background facts of this casa arc set out in thc
Pkaintifbcouutcrdcfondani, courL‘s Jzmumjy H), 2003 memorandum opinion and
v order amd oecd not bo recounted at length FN2
TRECON RESTA TS INTERNATIONAL., ct Inline filed this suit on May 9, 2000 against Yricou
al,Dof`cncEa11ts-countcrplajntiffs Restaurants International, Kentucky Fried Chicken
N0. Civ.A. 3:00~CV~099G—. Corporation, Pizza Hut, Inc , amd Taco Bc?} Corp ("
thc Tricon Defondamts"). it amended its complaint
June 14, 2002 on August 23, 2000, adding i’R1 as a defendant
Inline alleged that defendants were liable for breach
of contract, breach of warranty, and negligence
MEAJORANDUAJ OPDWON AND ORDER concerning scwicos thai Inline provided in affixing
promotional game pieces to product packaging used
FITZWATER, J in fast food restaurants
*1 Defendant Packaging Resources, Inc ("PRE")
movcs for {cave to amend its answer to assed
additional affimwtivc defenses and to filo :1 FN2 Aithough in the context of that
counterclaim, and p1aintiff—couu1c1ciofondani Inline 0piz1§.on»a ruling on Rule: 12(b)(6) motions
Corporation ("Inl1Luc:") moves for Eezavo to amend its to dismiss—t,ho couxi viewed thc facts
complaint and its reply FN} to the counterclaim of favorably to inline as the noumovant, it
certain defendants The oouxi grants both motions need not recount them under a different
standard in the prcscm decision
FN} Inline actually entitles its mply as an Yhc Tricon Dcfcndanizs and PRI fiicd motions to
"zmswcr." This is imp1·opcr· Fcd.R Civ? dismiss, and the court on Janumy 10, 2001 granted
`?(z1) provides: tho motions in part, dismissing counts H, V, and VE.
There shall be E1 complaint and an answer; The court dismissed ono of In1imc's contract claims
cz repbz ro a cmmlercloim derzomhmted as and its wasrmsty and negligence actions but declined
such; sm answer to zz CIUSS-Ci£1iI'I1, if the to dismiss three breach of contract counts
answer contains a c:ross~c1aim; 21 iioiiowing tho courfs decision, tho Txicon
1.hi1·d-party complaint, if 21 person who was Defendants filed no answer and countarciaim on
not an original party is summoned under Ianumy 25, 2003. PRI filed iis zmswor on Fcbmmiy
thc provisions of`Ru1c 14; and a $hird—pm‘ty 5, 2001 Inline filed its reply FNB to the Trioon
answer, if zz 1i1ird—pm·ty complaint is Dcfcndz1nts' coumcr·c1z1im 0nFc%¤1‘umfY 25, ZOO}
served No other pleading shuii bc allowed,
except that the court may order :1 reply to
an answer or a thi:d—pz1rtTy answer. ?N3 See .sng¤:·v;1 note 1
Id (emphasis added) Accordingly, {hc
coun will rofcr throughout this The coun filed a scheduling order on Soptcmbcr E2,
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Case 1:04-cv-01266-SLR Document 162-8 Filed 08/30/2005 Page Bpoalgg 3 Ofll
Not Reported in F Supp 2d Page 2
Not Reported in F.Supp 2d, 2002 WL 1331885
(Cite as: Not Reported in F.Supp.2d}
2000 that estabiished October l, 2001 as the 2002) (Fitzwater, J) The standards for determining
deadline to file motions for ieave to amend ln an whether ieave should be granted under Rule 13(f) to
order filed April 27, 200l the court set the case for allege an omitted counterclaim are similar to those
trial on the April 3, 2002 docket On September 5, under Rule l5(a) See 6 Charles Alan Wright, et al ,
200l the court granted defendants motion for Federal Practice ond Procedure § l4`?9 at 573-74
continuance, reset the trial to the October 7, 2002 (1990) ( "l-lowever, severai courts have ruled that
docket, and extended atl unexpired deadlines for six the same liberal standmds that apply when leave to
months, effectively extending to April 1, 2002 the amend is requested under Rule i5(a) should govern
deadline rei filing motions for leave to amend On when leave to add an omitted counterclaim is
March il, 2002 the court granted in part l.n1ine's requested under Rule l3(f) Thus, little seems to
motion for continuance. lt retained the October 7, turn on whether the amendment is made under Rule
2002 trial docket setting but extended certain l3(f) or Rule l5(a) because using the iatter
pretrial deadlines, including the deadiine for parties provisiorfs permissive approach would permit the
to file motions for ieave to amend pleadings, which counterclaim to he added in almost every case
it aerenea to May 1, 2002 under Rule l3(f) “ (footnote omitted))
On April 30, 2002 PRI filed a motion for leave to *2 Having reviewed the grounds set forth in the
tile amended pleading, in which it requests leave to motions and in the opposing parties' responses, the
amend its answer to assert new affirmative defenses court is persuaded that iave to amend should be
and to file a compulsory counterclaim for usury granted Neither PRI nor inline has engaged in
Inline opposes PRi‘s motion. On May l, 2002 Inline undue delay, Both parties filed their motions by the
tiled a motion to amend complaint and to amend courtnordered deadline Nor has there been a
reply to the Tricon Defendants counterclaim The showing of bad faith or dilatoxy motive The
Tnconlkfendants oppose lnline'smotion. prejudice that the parties opposing the motions
maintain they will incur is insufficient to justify
denying leave PR.} requests leave to assert a
ll compulsory counterclaim for usury, a companion
affirmative defense of usury, and the affirmative
“it is settled that the grant of leave to amend the defenses of lack of privity of contract, failure to
pleadings pursuant to Rule i5(a) is within the mitigate damages, contractual bar or limitation of
discretion of the trial court " Zenith Radio Conn. v. damages, and offset The court is not convinced that
Hazeirine Reseaneiz, Inc, 401 U S 321, 330 (1971) allowing a compulsory counterclaim and aftirrnative
Leave to amend pleadings "sha1l be freeiy given defenses ot" this type will resuit in extensive or
when justice so requires," Rule 15(a) Granting expensive additional discovery or pleadings And
leave to amend, however, "is by no means although lnline's claim for tortious interference with
automatic " Wirnm vt Jack Eckerd Corp, 3 P 3d contract will add a tort claim to a case now based
i37, 139 (Sth Cir E993) (quoting Addington v. only on contract causes of action, the tort claim is
Farnzeris Elevarcrftdut. Ins Co., 650 F.2d 663, 666 related to a breach oi contract cause of action that
(Sth Cir Unit A July i981)) "fhe district court may has been present in die litigation since Inline filed
consider factors such as undue delay, bad faith or its first amended complaint in count I, Inline
dilatory motive on the part of the movant, repeated alleged that the `iricon Defendants breached their
failure to cure deficiencies by amendments contract with Inline "by instructing PRI to withhold
previously allowed, undue prejudice to the payments to inline for the amounts which are due
opposing party, and futility of amendment Id. and owing," P lst Am Comp} il 38 in its
(citing Fenton v Davis, 371 U S, 178, 132 (3962)) proposed tortious interference claim, Inline asserts
When, as here, a party tiles a motion to amend by that the Tricon Defendants interfered with lniine‘s
the court~ordered deadline, there is a "presumption contract with PRI by demanding that PRI stop
of timeliness " Pc·hJ-America, Inc v. Senor Int'! paying inline on the remaining invoices, See
Inc, 2002 Wl. 206454, at *1 (ND Tex Feb 7, Proposed 2dAm Cornpl. ${57
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Case 1:04-cv-01266-SLR Document 162-8 Filed 08/30/2005 Page 4Po8lg¢I 4 Of 4
Not Reported in F Supp 2d Page 3
Not Reported in F Supp 2d, 2002 WL 1331885
(Cite as: Not Reported in F.Supp.2d)
`fhe court declines to deny leave to amend based on additional discovery costs and expenses,
contentions that the new claims or defenses would see Inline Resp at 7, is denied
be futile "[l']he courts almost unvatying practice
when futility is raised is to address the merits of the FNS. if an extension of the discovery
claim or defense in the context of a Rule l2(e)(6) or deadline is needed in view of this decision,
Rule 56 motion. ‘The court only infrequently the parties may obtain such relief by
considers the merits of new causes of action in the agreed order, as they did on June ll, 2002
context of Rule l5(a) The court prefers instead to when the court allowed there to take the
do so in the context of a Rule l2(b)(6) or Rule 56 deposition of Donna Kahre after the July l,
motion, where the procedural safeguards are surer " 2002 discovery deadline, or they may seek
’ Pch¤—Ame:·ic¤, 2002 WI. 206454, at *l—*2 appropriate relief by motion
(quoting Sells v.. Six Flags Over Tex, Incl, Civil
Action No 3:96~CV—l57·¤t—D, at 2 (ND Tex Oct *3 SO ORDERED,
l`.·', 1996) (liitzwater, J )) The summary judgment
motion deadline has not elapsed, and these claims NDTex.,2002
and defenses can be addressed by summary Inline Corp vi Tricon Restaurants Intern
judgment motion Moreover, nothing prevents a Not Reported in F Supp 2d, 2002 WI. *;}.31885
party from moving to dismiss the new claims or
defenses under Rule l2(b)(6) if there are grounds to Briefs and Other Related Documents (Back to top)
do so
· 3:00cv0099O (Docket) (May 09, 2000)
HI END DF DOCU1\/[ENT
Accordingly, the court grants PRl's April 30, 2002
motion for leave to file amended pleading FN4 and
grants Inline-:'s May l, 2002 motion to amend
complaint and motion to amend reply The clerk of
court shall file lnline's second amended complaint
and its amended reply today The court notes that,
by its motion, PRI seeks leave to amend its answer
to a first amended complaint that will now be
superseded by a second amended complaint. Rather
than direct the clerk of court to file the amended
answer and counterclaim that PRI has submitted
with its motion, the court will permit PRI to file, no
later than June 28, 2002, an amended answer and
counterclaim that is responsive to I11line's second
amended complaint PRI is entitled to assert in the
amended answer the affirmative defenses and
counterclaim that the court has addressed today and
any other affirmative defenses that are now
available due to new allegations contained in
lnline’s second amended complaint Inline is
entitled to file a timely reply to the counterclaim
PNS
FN4 Inlinc's alternative request for
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