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

Case 1 :04-cv—00407-GIVIS Document 38 Filed 06/15/2006 Page 1 of 4
IN THE DISTRICT COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY ~
In re: Case No. 04-407 (GMS)
BROADBAND OFFICE, INC.,
Debtor.
Bankruptcy C.A. No. Ol-1720 (GMS)
BROADBAND OFFICE, INC., Chapter ll
Plaintiff,
v.
TECHNOLOGY CREDIT CORPORATION
d/b/a EXTREME NETWORKS CREDIT
CORPORATION, EXTREME NETWORKS,
INC.,
and
KEY EQUIPMENT FINANCE, INC. f/k/a/
KEY CORPORATE CAPITAL, INC. f/k/a
LEASTEC CORPORATION,
Defendants.
MOTION FOR LEAVE TO AMEND ANSWER AND CROSS-CLAIM
Defendant, Technology Credit Corporation d/b/a Extreme Networks Credit
Corporation ("TCC"), hereby moves, pursuant to Federal Rule of Civil Procedure 15, for an
Order granting it leave to serve and file an Amended Answer And Cross-Claim in the above-
referenced action. Copies of the proposed fomi of the Amended Answer And Cross-Claim and a
form of the Amended Answer And Cross-Claim that indicates in what respect it differs from the
original pleading are attached hereto as Exhibits A and B respectively. The grounds for this
motion are as follows:

Case 1:04-cv—00407-Gl\/IS Document 38 Filed 06/15/2006 Page 2 of 4
1. Plaintiff filed the Complaint in this action on June 21, 2004. Thereafter, on
December 23, 2005, plaintiff filed an Amended Complaint, adding Extreme Networks, Inc.
("Extreme") and Key Equipment Finance Inc. f/k/a Key Corporate Capital, Inc. f/k/a/ Leastec
Corporation ("Key”) as defendants. In the Amended Complaint, Plaintiff sought avoidance and
recovery of alleged preferential transfers.
2. In the Amended Complaint, Plaintiff seeks to hold each defendant jointly
and severally liable to it for the alleged preferential transfers. TCC’s Amended Answer and
Cross-Claim adds a cross—claim against Key alleging that the preferential transfers were made to
and for the benefit of Key. Accordingly, to the extent that TCC is found liable to Plaintiff, TCC
is entitled to equitable indemnification, apportionment and contribution from Key.
3. The standards applicable to a motion to amend are well established under
Federal law. Federal Rule of Civil Procedure 15 explicitly provides that "leave to amend shall
be freely given when justice so requires." N.A.I.F. Inc. v. Snyder, 2005 WL 735554, *2 (D.Del.
(Exhibit C). "In the absence of substantial or undue prejudice, denial of a motion for leave to
amend a pleading ‘must be based on bad faith or dilatory motives, truly undue or unexplained
delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of
amendment."’ Id. (quoting Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)).
4. No written discovery has yet been taken of Plaintiff, Key or Extreme, no
depositions have been taken and no substantive motions have been decided. The Amended
Answer and Cross-Claim does not alter the answer to the Amended Complaint, but merely adds
as a cross-claim a claim that to the extent TCC is found liable to Plaintiff, TCC is entitled to
equitable indemnification, apportiomnent and contribution from Key. TCC understands that the
parties are aware of the facts alleged in the Amended Answer and Cross—C1aim, and the case has
2

Case 1:04-cv—00407-G|\/IS Document 38 Filed 06/15/2006 Page 3 of 4
not proceeded to a point where any party would have to expend substantial time or resources to
address these issues. This is TCC’s first request to amend and trial is not scheduled to begin
until May, 2007.
5. Finally, Plaintiff, Key, and Extreme have advised TCC that they do not
oppose this motion to amend.
WHEREFORE, TCC respectfully requests that the Court enter an Order in the
form attached granting it leave to file an Amended Answer And Cross-Claim.
MORRIS, NICHOLS, ARSH"i*& TUNNELL LLP
William H. Sudgl (#463) g E
Thomas W. Briggs, Jr. (#4 6)
_ 1201 North Market Street
OF COUNSEL Wilmington, DE 19899
Katherine S. Clark (302) 658`9200 _ _
Law Offices Attorneys for Technology Credit Corporation d/b/a
919 The Alameda Extreme Networks Credit Corporation
San Jose, CA 95126
(408) 350-7523
June 15, 2006
524472
3

Case 1:04-cv—00407-G|\/IS Document 38 Filed 06/15/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I, Thomas W. Briggs, Jr., Esquire, hereby certify that copies of the foregoing
MOTION FOR LEAVE TO AMEND ANSWER AND CROSSCLAIM were caused to be served
on June 15, 2006 upon the following counsel in the mamier indicated:
BY ELECTRONIC SERVICE
Brian A. Sullivan
Werb & Sullivan
300 Delaware Avenue
Wilmington, DE 19801
Ricardo Palacio
Ashby & Geddes
222 Delaware Avenue
P. O. Box 1150
Wilmington, DE 19899
Steven L. Caponi
Blank Rome LLP
1201 North Market Street Q
Suite 800
Wilmington, DE 19801-4226
Thomagi. Briggg (#4076)
June 15, 2006
400825

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