KLAYMAN v. OBAMA et al

Filing 33

MOTION to Amend/Correct 4 Amended Complaint by LARRY E. KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE (Attachments: # 1 Exhibit 1 -- Second Amended Complaint, # 2 Text of Proposed Order)(Klayman, Larry)

IN UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et. al
Plaintiffs,
v.
BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action No. 13-CV-851

PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Plaintiffs, Larry Klayman, Charles Strange, and Mary Ann Strange, hereby move this
honorable Court to file an Amended Complaint (Attached as Exhibit 1) through amendment and
as grounds therefore would show:
Subsection (a)(2) of Rule 15 of the Federal Rules of Civil Procedure provides that leave
to amend shall be freely given when justice requires. "Leave to amend a complaint should be
freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party,
repeated failure to cure deficiencies, or futility." See Richardson v. United States, 193 F.3d 545,
548-549 (D.C. Cir. 1999) citing Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct.
227 (1962).
In addition, under Rule 15(b)(2), "[a] party may move—at any time, even after
judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded
issue. But failure to amend does not affect the result of the trial of that issue." Fed.R.Civ.P.
15(b)(2). See also Brown v R. & R Engineering Co., F Supp. 315 (D. Del.1958) reversed on
other grounds 264 F.2d 219 (3d Cir.1959); Hemmer–Miller Dev. Co. v. Hudson Ins. Co., 63 S.D.
109, 256 N.W. 798 (1934)."Trial of [an] issue without objection normally is enough to satisfy
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the Rule 15(b) requirement." Kirkland v. Dist. of Columbia, 70 F.3d 629, 633, 315 U.S. App.
D.C. 68 (D.C. Cir. 1995).
There was an implied and inherent cause of action under the Administrative Procedure
Act ("APA"), 5 U.S.C. §§ 701 et seq. within Plaintiffs’ Amended Complaint by virtue of the
nature of the allegations. The Plaintiffs wish to amend the complaint simply to clarify and make
it explicit that there is a remedy under the APA.
The Plaintiffs contacted Defendants’ counsel to seek consent for this motion. The
Defendants’ counsel have not indicated whether they consent to this motion as of the time of this
filing, which is being made in anticipation of the hearing on November 18, 2013.

Dated: November 17, 2013
Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
Attorney at Law
D.C. Bar No. 334581
2020 Pennsylvania Ave. NW, Suite 800
Washington, DC 20006
Tel: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of November 17, 2013 a true and correct copy of the
foregoing Motion For Leave To Amend the Complaint (Civil Action No. 13-cv- 851) was
submitted electronically to the District Court for the District of Columbia and served via
CM/ECF upon the following:
James J. Gilligan
Special Litigation Counsel
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
[phone]
Email: [e-mail]
James R. Whitman
U.S. DEPARTMENT OF JUSTICE
P.O. Box 7146
Washington, DC 20044
[phone]
Fax: [phone]
Email: [e-mail]
Randolph D. Moss
WILMER CUTLER PICKERING HALE & DORR LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants.
Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq.
D.C. Bar No. 334581
Klayman Law Firm
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Tel: [phone]

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