Democratic National Committee v. The Russian Federation et al

Filing 162

LETTER MOTION for Conference (pre-motion conference) addressed to Judge John G. Koeltl from Joseph M. Sellers dated August 31, 2018. Document filed by Democratic National Committee.(Sellers, Joseph)

Case 1:18-cv-03501-JGK Document 162 Filed 08/31/18 Page 1 of 3

Joseph M. Sellers
[phone]
[e-mail]

August 31, 2018

Via ECF
Honorable John G. Koeltl
United States District Judge
Southern District of New York
500 Pearl Street
New York, NY 10007-1312
Re:

Democratic National Committee v. The Russian Federation, et al., No. 1:18-cv03501-JGK

Dear Judge Koeltl:
I represent the Democratic National Committee (“DNC” or “Plaintiff”) in the abovereferenced action. In accordance with Rules 1.F and 2.B of the Individual Practices of Judge
John G. Koeltl, the DNC respectfully requests that the Court schedule a pre-motion conference to
discuss a motion to amend the Complaint. The DNC seeks to amend its Complaint to reflect new
information from Special Counsel Robert Mueller’s July 13, 2018 indictment of 12 Russian
intelligence officers (the “July 13 Indictment”), articles and reports published after the
Complaint was filed, and the DNC’s cybersecurity consultants.1 The represented Defendants do
not oppose this request. 2

1

This new information includes the identities of the Russian agents who hacked into the
DNC’s network in the spring of 2016; details about the manner in which the agents
accomplished the hacks; evidence of hacking activity that continued into the fall of 2016;
details about the information that was stolen from the DNC; evidence of the extent to which
Defendant Julian Assange controls Defendant WikiLeaks; and evidence of conspiratorial
communications between Russian agents and Defendant WikiLeaks.

2

The consenting Defendants include: Donald J. Trump for President, Inc.; Donald Trump Jr.;
Roger Stone; Jared Kushner; George Papadopolous; and Aras Agalarov. Emin Agalarov
does not oppose the request subject but he continues to contest the sufficiency of service. The
DNC has not been able to reach the remaining Defendants, who appear to be unrepresented

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August 31, 2018
Page 2
Federal Rule of Civil Procedure 15(a)(2) permits amendment of a complaint with leave of
court, and instructs district courts to “freely give leave when justice so requires.” This
“permissive standard is consistent with [the Second Circuit’s] ‘strong preference for resolving
disputes on the merits.’” Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011)
(quoting New York v. Green, 420 F.3d 99, 104 (2d Cir.2005)). Generally, a plaintiff should be
granted leave to amend “in the absence of . . . prejudice or bad faith.” Pasternack v. Shrader,
863 F.3d 162, 174 (2d Cir. 2017). If the plaintiff’s motion is also timely and non-futile, the court
categorically “should not deny” it. Foman v. Davis, 371 U.S. 178, 182 (1962). The DNC’s
proposed motion to amend satisfies all of these criteria.
First, Defendants cannot be prejudiced by Plaintiff’s proposed amendments. In
determining what constitutes prejudice, courts in this Circuit consider whether the amendment
would: “‘(i) require the opponent to expend significant additional resources to conduct discovery
and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the
[opponent] from bringing a timely action in another jurisdiction.’” Pasternack, 863 F.3d at 174
(quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)).
Here, Defendants will not need to expend additional resources at all. The proposed
amendment will provide new detail about the conspiracy described in the current Complaint,
rather than providing detail about a separate conspiracy; thus, the amendment will not expand the
scope of discovery. Moreover, plaintiff seeks to amend the Complaint very early—before any
Defendant’s responsive pleading is due. See Am. Med. Ass’n v. United Healthcare Corp., No.
00CIV2800LMM, 2006 WL 3833440, at *6 (S.D.N.Y. Dec. 29, 2006) (no prejudice where “the
parties have completed only preliminary discovery as to the ‘proper parties in this action’ and
have not yet engaged in any significant discovery on the merits”). For the same reasons, the
proposed amendment will not significantly delay the resolution of the dispute. In addition,
adding factual material to the complaint will not prevent any party from bringing a timely action
in another jurisdiction. See Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc.,
233 F.R.D. 355, 363 (S.D.N.Y. 2005) (whether delay prevented defendant from bringing a
timely action in another jurisdiction inapposite, “as this is not a case where a defendant is raising
in an untimely manner a statute of limitations defense, which, if raised earlier, would have
allowed the plaintiff to re-assert its action in a non-time-barred jurisdiction.”). Finally, if the
DNC waits until Defendants answer, move, or otherwise respond to the Complaint, it will have
an opportunity to amend as of right. See Fed. R. Civ. P. 15(a)(1)(B). Defendants cannot claim
that they are prejudiced by Plaintiff’s request to amend the Complaint earlier, before Defendants
undertake the time and effort to respond to a document that Plaintiff plans to change.

(Paul Manafort; Richard Gates; Julian Assange; WikiLeaks; the Russian Federation;
the GRU; and GRU Operative #1).

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August 31, 2018
Page 3
Second, the proposed amendments are made in good faith, with no dilatory motive.
Courts in this District find bad faith or a dilatory motive “[w]hen it appears that leave to amend
is sought in anticipation of an adverse ruling on the original claims.” PI, Inc. v. Quality Products,
Inc., 907 F.Supp. 752 (S.D.N.Y.1995). Here, by contrast, there has been no briefing on the
original claims in any capacity. The amendments reflect Plaintiff’s good-faith attempt to add
factual detail that will sharpen the allegations in the Complaint and thereby assist the Court in
deciding any subsequent dismissal motion.
Third, there is no undue delay. Courts in this District look both to the time that has
elapsed since the party seeking to amend has discovered the new facts it seeks to add to the
complaint, and to the stage of the litigation. Here, Plaintiff seeks to add to the Complaint new
facts that it learned less than two months ago. This amount of time does not constitute delay in
this District. See, e.g., Securities and Exchange Commission v. DCI Telecommunications, Inc.,
207 F.R.D. 32, 34–35 (S.D.N.Y. 2002) (allowing amendment where plaintiff obtained discovery
supporting amendment four months before motion); American Medical Association v. United
Healthcare Corp., No. 00 Civ. 2800, 2006 WL 3833440, at *4 (S.D.N.Y. Dec. 29, 2006) (finding
no undue delay where party moved to amend several months after learning relevant facts in
discovery).
Finally, the proposed amendment will not be futile. “[T]he standard for determining
futility is comparable to the standard for deciding a motion to dismiss under Fed. R. Civ. P.
12(b)(6). Twahir v. Vill. Care of New York, Inc., No. 10 CIV. 9452 JGK, 2011 WL 2893466, at
*1 (S.D.N.Y. July 12, 2011) (citing Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d
566, 604 (2d Cir. 2005)). It is Plaintiff’s position that all claims in its current Complaint would
survive a 12(b)(6) motion; providing additional context and detail for these claims will make
Plaintiffs’ case even stronger.
Plaintiff respectfully requests, for the convenience of the Court and the parties, that the
Court conduct a pre-motion conference on Plaintiff’s proposed motion for leave to amend the
complaint in conjunction with the September 13, 2018 status conference currently scheduled.
Sincerely,

Joseph M. Sellers