NNDYM IN, INC. v. UV IMPORTS, INC et al

Filing 84

ORDER granting 78 Motion for Leave to File Amended Complaint. The Clerk of Court is directed to file Plaintiff's First Amended Complaint. Signed by Magistrate Judge William G. Hussmann, Jr., on 12/8/2011. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
NNDYM IN, INC.,
Plaintiff,
v.
UV IMPORTS, INC., and
A ROYAL TOUCH, INC.,
Defendants.

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3:09-cv-129-RLY-WGH

ENTRY ON PLAINTIFF’S MOTION FOR LEAVE
TO FILE AN AMENDED COMPLAINT
This matter is before the Honorable William G. Hussmann, Jr., United State
Magistrate Judge, on Plaintiff’s Motion for Leave to File an Amended Complaint
filed November 17, 2011. (Docket No. 78). Defendants have not filed a response.
I.

Discussion
Plaintiff, NNDYM IN, Inc., filed this motion seeking to amend its Complaint.

The amendment of pleadings by a party is governed by Rule 15(a) of the Federal
Rules of Civil Procedure. That rule permits the amendment of a pleading after a
responsive pleading has been filed only upon leave of the court or consent of the
adverse party, but notes that leave should be freely given when justice requires.
FED. R. CIV. P. 15. “Although the rule reflects a liberal attitude towards the
amendment of pleadings, courts in their sound discretion may deny a proposed
amendment if the moving party has unduly delayed in filing the motion, if the
opposing party would suffer undue prejudice, or if the pleading is futile.”

Campania Management Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 848-49 (7th
Cir. 2002).
In this case, it does not appear that there has been any undue delay in the
filing of the First Amended Complaint or that Defendants would suffer any undue
prejudice if the amendment was permitted. The only question is whether or not
the amendment would be futile. On November 1, 2011, all claims against Ujas
Patel (“Patel”) in Plaintiff’s original Complaint were dismissed without prejudice by
the court. Plaintiff has now moved to amend the Complaint by adding two new
claims (Count II and Count III) against Patel. In Count II, Plaintiff alleges that
there was an oral agreement between Plaintiff and Patel that ensured that Patel
would be personally responsible for performance of the contract. (First Amended
Complaint ¶¶ 29-46). In Count III, Plaintiff raises an alter ego or “piercing the
corporate veil” theory in which Defendants UV Imports, Inc. (“UV Imports”) and A
Royal Touch, Inc. (“Royal Touch”) are the alter egos of Patel. (Id. ¶¶ 47-55).
Plaintiff alleges that the corporate veil surrounding UV Imports and Royal Touch
should be pierced because of several factors including: undercapitalization;
failure to conduct shareholder meetings; and failure to maintain corporate
records. Indiana courts do allow piercing the corporate veil under some
circumstances. Escobedo v. BHM Health Associates, Inc., 818 N.E.2d 930, 933
(Ind. 2004). Additionally, oral contracts are recognized under Indiana law in some
circumstances. See, e.g., Kelly v. Levandoski, 825 N.E.2d 850, 857 (Ind. Ct. App.
2005). Consequently, the court concludes that allowing the amendment in this
instance would not be futile.
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II.

Conclusion
For the reasons outlined above, Plaintiff’s Motion for Leave to File an

Amended Complaint is GRANTED. The Clerk of Court is directed to file Plaintiff's
First Amended Complaint.
SO ORDERED this 8th day of December, 2011.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Electronic copies to:
Robert L. Burkart
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]
John J. Conway
SULLIVAN HINCKS & CONWAY
[e-mail]
Clay W. Havill
ZIEMER STAYMAN WEITZEL & SHOULDERS LLP
[e-mail]
Mark R. Ramsey
RAMSEY LAW OFFICE
[e-mail]
Patrick A. Shoulders
ZIEMER STAYMAN WEITZEL & SHOULDERS
[e-mail]

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