Union Pacific Railroad Company v. Pactrans Air & Sea, Inc. et al

Filing 58

MOTION by Plaintiff Union Pacific Railroad Company to amend/correct the complaint to remove counts III, IV, and VI and the individual defendants without prejudice, MOTION by Plaintiff Union Pacific Railroad Company for judgment on counts I, II, and V (Attachments: # 1 Exhibit, # 2 Exhibit)(Schaefers, Scott)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNION PACIFIC RAILROAD COMPANY, Plaintiff,
vs.
PACTRANS AIR & SEA, INC., KETTY Y. PON,
ALEXANDER PON, and CHANCE PON, Defendants.

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Case No. 1:16-cv-8092
Magistrate Judge Sheila Finnegan
(By Consent)

PLAINTIFF’S COMBINED MOTIONS (1) TO AMEND THE COMPLAINT TO REMOVE
COUNTS III, IV, AND VI AND THE INDIVIDUAL DEFENDANTS WITHOUT
PREJUDICE, AND (2) FOR ENTRY OF A FINAL AND ENFORCEABLE JUDGMENT
Plaintiff Union Pacific Railroad Company, by its attorneys, requests the Court to enter an
Order (1) permitting plaintiff to amend the complaint to remove counts III, IV, and VI and the
individual defendants without prejudice, and (2) entering a final and enforceable judgment in favor
of plaintiff and against defendant PacTrans Air & Sea, Inc. (“PacTrans”) in the amount of
$5,834,633.21 plus costs of suit. In support of this motion, plaintiff states as follows:
1.

On August 15, 2016, plaintiff filed its initial complaint in this action under the

Court’s diversity jurisdiction. (Exhibit 1). The complaint contained the following counts: (1) breach
of fiduciary duty; (2) conversion; (3) breach of contract; (4) money had and received; (5) accounting;
and (6) pierce the corporate veil. Counts I-V were brought against PacTrans, and count VI was
brought against the individual defendants.
2.

On December 20, 2017, the Court granted plaintiff’s motion for summary judgment

on counts I, II, and V, and denied plaintiff’s summary judgment motion as to counts III, IV, and
VI. (12/20/17 Mem. Op. and Order, exhibit 2). Defendants had not answered the complaint, nor
had the parties conducted any discovery, prior to the summary judgment briefing or order.

3.

Due to the Court’s summary judgment award on counts I, II, and V, plaintiff now

seeks (a) to amend the complaint to remove counts III, IV, and VI and the individual defendants
without prejudice, and (b) the Court’s entry of a final and enforceable judgment against PacTrans
on counts I, II, and V. See Swartz v. Wabash Nat’l Corp., 674 F.Supp.2d 1051, 1057 (N.D. Ind. 2009)
(“generally, an attempt to voluntarily dismiss only certain counts of a complaint should be treated
as a motion to amend the complaint rather than a motion to dismiss”); Panduit Corp. v. All States
Plastic Mfg. Co., No. 76-cv-4012, 1981 WL 66992, at * 1 (N.D. Ill. Mar. 20, 1981) (amended pleading
which deletes less than all claims is treated as a motion to amend the complaint to drop those claims).
4.

The amount plaintiff sought in its summary judgment papers was $5,834,633.21.

(Ex. 2, p. 7; see also 3/30/17 plaintiff’s summary judgment brief, exhibit 3; 3/30/17 affidavit of
Marcia Tauriella, exhibit 4). The Court’s 12/20/17 Order reflected that amount, and granted the
motion for summary judgment as to counts I, II, and V. (Ex. 2).
5.

Accordingly, plaintiff seeks entry of a final and enforceable judgment in its favor and

against PacTrans in the amount of $5,834,633.21, plus costs of suit.
WHEREFORE, plaintiff requests the Court to enter an Order (1) permitting plaintiff to
amend the complaint to remove counts III, IV, and VI and the individual defendants without
prejudice, (2) entering a final and enforceable judgment in favor of plaintiff and against PacTrans
on counts I, II, and V, and granting plaintiff any other just and appropriate relief.
DATE: January 26, 2018

Respectfully submitted,

Scott A. Schaefers
BROTSCHUL POTTS LLC
30 N. LaSalle St., Ste. 1402
Chicago, IL 60602
Phone: [phone]
Email: [e-mail]

UNION PACIFIC RAILROAD COMPANY, plaintiff.
By:
Scott A. Schaefers, one of its attorneys

CERTIFICATE OF SERVICE
I, Scott A. Schaefers, an attorney for plaintiff Union Pacific Railroad Company, pursuant to
28 U.S.C. § 1746(2) and subject to penalty of perjury, certify that on January 26, 2018, I served its
Combined Motions (1) to Amend the Complaint to Remove Counts III, IV, and VI and the
Individual Defendants Without Prejudice, and (2) For Entry of a Final and Enforceable Judgment
on counsel of record via the Court’s ECF system.

Scott A. Schaefers
BROTSCHUL POTTS LLC
30 N. LaSalle St., Ste. 1402
Chicago, IL 60602
Phone: [phone]
Email: [e-mail]
Date: January 26, 2018