Anwar et al v. Fairfield Greenwich Limited et al

Filing 1130

ENDORSED LETTER: addressed to Judge Victor Marrero from Jorge A. Mestre dated 5/1/2013 re: Accordingly, for the foregoing reasons, and those stated in Headway's April 22, 2013 letter to the Court, Headway respectfully requests a pre-motion conference to discuss its request to move for leave to amend, and an appropriate briefing schedule. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Headway Investment Corp. The Court has received sufficient argument in the correspondence to date relating to the matter set forth above. No further submissions will be considered. So Ordered. (Signed by Judge Victor Marrero on 5/2/2013) (js)

Oi:!013-05-01

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RIVERO MESTRE

May 1,2013
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Honorable Vittor Marrero
United States :District Judge
Daniel P.atricli Moynihan U.S. Courthouse

~~;:::k~~F York 10007-1312
Re:

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. Anwar, et aL v. Fabfleld Greenwich Limited, et al,
i 09-cv-118(VM)(TIlK)

Dear Judge .t=ro:
I write on behalf of Plaintiff Headway Investment Corp. in response to the April
24, 2013 lette~ to this Court from Sarah L. Cave, on behalf of PricewaterhouseCoopers
Accountants
('·Pw-C Netherlands"), objecting to Headwais request for a pre-motion
conference re arding a motjon for leave to amend. PwC Netherlands' letter has nothing
to offer on th critical issue raised by Headway's request, and argues only that the
Court's denia. of a previous motion to amend should foreclose Headway'S current
request. But this reliance on prior decisions fails to address the overarching question,
whether Hea1way's proposed amendment would unfairly prejudice PwC Netherlands, a
question to wrich the answer is plainly "no,~'

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It is well settled that "[rJeasons for a proper denial of]eave to amend include
undue delay, bad faith. futility ofthe amendment, and perhaps most important, the
resulting preJ~diCe to the opposing party." State Teachers Ret. Ed. v. Fluor Corp., 654
F.2d 843,85 (2d Cir. 1981) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,
230.9 L.Ed. 222 (1963)). PWC Netherlands argues only that Headway'S amendment is
foreclosed bebause the Court previously denied Headway's motion to amend, citing
undue delay. However, mere delay is not undue delay, absent a showing of bad faith or
undue prejUdice, a showing that PwC does not attempt, and would be unable, to make. In
the Standard bartered cases, neither PwC Netherlands nor any other PwC entity have
been require to take even the frrst step in defending a civil action, namely, responding to
a complaint. See State Teachers Ret. Bd Y. Fluor Corp., 654 F.2d 843, 856 (2d Cir.l98 1)
("Mere delay; hOVv'ever, absent. a showing of bad faith or undue prejudice, does not
provide a ba~s for the district court to deny the right to amen.d."); see also 6 Charles
Allen Wright Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure:
Civil 2d. § 1 .87, at 613 (1990 & 2007 Supp.) (prejudice to the opposing party is "the
most importapt factor" in deciding a motion for leave to amend, and "the most frequent
reason for de~ying leave to amend.").

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PwC Netherlands' opposition to Headway's proposed amendment is predicated

entirely on this Court's earlier decision that Headway delayed in seeking leave to amend,
and avoids altcpgether any attempt to demonstrate "undue prt"Judice.,,1 We commend PWC
Netherlands ff refraining from making the frivolous argument that the proposed
amendment w uld cause "undue prejudice," but the plain fact is that Headway's
proposed arne dment wouldn't cause it any prejudice.
Aceor ingly, for the foregoing reagons, and those stated in Headway's April 22,
2013 letter toe Court, Headway respectfully requests a pre-motion conference to
discuss its req est to move for leave to amend, and an appropriate briefing schedule.

Respectfully submitted,

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ror Jorge A. Mestre

cc:

Couns I for all parties (bye-mail)

., How can PwC lfetherlands ever be prejudiced wben this Court has already made dear it would not force
the other non-Batik defendants named by Headway to answer the complaint untillhe termination of the
consolidated AnWar action.

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