DEEN-MITCHELL v. LAPPIN et al

Filing 86

ORDER (1) plaintiffs motions to amend and/or supplement his complaint, (Doc. No. 76) & (Doc. No. 81), are GRANTED, and plaintiff shall file one final all-inclusive amended complaint by February 15, 2012 in accordance with the directions provided abov e;(2)plaintiffs motion to have supplement to complaint held in abeyance, (Doc. No. 82), is DENIED as moot;(3)plaintiffs motions for the defendants to return his legal materials, (Doc. No. 71), (Doc. No. 73), (Doc. No. 83) & (Doc. No. 85), areDENIED; (4)plaintiffs motion for a court order regarding the preservation of evidence, (Doc. No. 78), is DENIED; and(5)plaintiffs supplemental complaint, (Doc. No. 77), is stricken from the record.Signed by Magistrate Judge Malachy E. Mannion on 1/10/12 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s)) (bs, )

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CONTINENTAL LIFE INSURANCE COMPANY v. SHEARSON LEHMAN
HUTTON INC.
Civil Action No. 88-9279
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
1990 U.S. Dist. LEXIS 14783

October 31, 1990, Decided

COUNSEL: [*1] Robert J. Donaghy, Esq., Paoli,
Pennsylvania, for Plaintiff.
Stephen C. Baker, Esq., STRADLEY, RONON,
STEVENS & YOUNG, Philadelphia, Pennsylvania, for
Defendant.
JUDGES: Herbert J. Hutton, United States District
Judge.
OPINION BY: HUTTON
OPINION

the plaintiff purchase of shares of Hutton Government
Securities Fund. The Complaint alleges that Continental'
purchase was induced by alleged misstatements made by
defendants Cosgrave and Campbell, and that as a result
Continental incurred a loss of $ 216,508.22.
The plaintiff now claims that since the Complaint
was filed, Continental has sustained additional damage
caused by the conduct of the defendants. Continental
alleges that its losses in the Hutton Fund caused
Continental to suffer [*2] a loss of capital and surplus,
thereby allegedly requiring a reduction of its insurance
business volume in order for it to maintain compliance
with insurance industry regulations and rules.
DISCUSSION

MEMORANDUM AND ORDER
Now before this Court are Plaintiff's Motion for
Leave to File A Supplemental Complaint, and
Defendants' response thereto. For the reasons stated
below, this Court will grant the plaintiff's Motion.
FACTS
The plaintiff, Continental Life Insurance Company
("Continental") bring securities law claims against the
defendants Shearson Lehman Hutton ("Shearson"),
Michael Cosgrave ("Cosgrave") and Robert Campbell
("Campbell"). The pending causes of action arise from

Plaintiff seeks to supplement its complaint pursuant
to Rule 15(d) of the Federal Rules of Civil Procedure.
This Rule provides in relevant part:
Upon motion of a party the court may , upon
reasonable notice and upon such terms as are just, permit
the party to serve a supplemental pleading setting forth
transactions or occurrences or events which have
happened since the date of the pleading sought to be
supplemented. Permission may be granted even though
the original pleading is defective in its statement of a
claim for relief of defense. It the court deems it advisable
that the adverse party plead to the supplemental pleading,

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1990 U.S. Dist. LEXIS 14783, *2

it shall so order, specifying the time therefore.
Fed. Rules. Civil Pro. 15(d).
Supplemental pleadings set forth new facts that have
occurred since the filing of the original complaint and
that affect the controversy and the relief sought: thus
bringing the action "up to date." Weisbord v. Michigan
State University, 495 F.Supp. 1347. (W.D.Mich. 1980).
[*3] Leave to file a supplemental complaint is wholly
within the discretion of the court. Reid v. International
Union, United Auto., Aerospace and agricultural
Implements Workers of America, Dist. Lodge 1093, 479
F.2d 517 (10th Cir. 1973), and generally such motions
are treated liberally. Bates v. Western Electric, 420
F.Supp. 521 (E.D. Pa. 1976).
The defendants contend that the proposed
supplement to the Complaint will prejudice the
defendants' case. Specifically, the defendants assert that
the new claims contained in the supplemental complaint
will require the defendants to incur additional time and
expense to prepare a defense. A district court may deny
leave to file a supplemental complaint if the court
believes that such pleading would prejudice the
defendants. In making this determination the court should
determine whether the defendants rights would be as well
protected by a trial on the supplemental complaint as they
would be in a new action. Friedman v. Typhoon Air
Conditioning Co., 31 F.R.D. 287 (S.D. NY 1962). In this
action, the defendants' assertion that additional time and
expense would be required to respond to the plaintiff's
supplemental complaint fails to [*4] state prejudice
sufficient to overcome the interests in judicial economy
and justice which favor the supplemental Complaint.
The defendants further argue that the proposed
supplemental complaint fails to state a claim.

Specifically, the defendants contend that the detailing of
damages in the proposed supplemental complaint is
inadequate under Rule 9(g), which states that "when
items of special damages are claimed, they shall be
specifically stated." Fed. Rule Civ. Pro. 9(g). In this
district the specificity requirement of Rule 9(g) must be
read in light of Local Rule 30. This Local Rule states
No pleading asserting a claim for unliquidated damages
shall contain any allegations as to the specific dollar
amount claimed, but such pleadings shall contain
allegations sufficient to establish the jurisdiction of the
court, to reveal whether the case is or is not subject to
arbitration under Local Rule 8, and to specify the nature
of the damages claimed e.g., "compensatory," "punitive,"
or both.
Local Rules of Civ. Pro. E.D.Pa. Rule 30. Read together,
these Rules suggest the liberal reading of Federal Rule
30(g). The Third Circuit has opined that "it is apparent
that our court has [*5] cast its lot with those
jurisdictions permitting wide latitude in pleading."
Rannels v. Nichols, Inc., 591 F.2d 242, 247 (3d Cir.
1979) (citing Altoona Clay Products, Inc. v. Dun
Bradstreet, Inc., 367 F.2d 625 (3d Cir 1966).
Accordingly, this Court will exercise it discretion
liberally in permitting the supplemental complaint. An
appropriate Order follows.
ORDER
AND NOW, this 31 day of October,
consideration of Plaintiff Motion for Leave
Supplemental Complaint, and defendants'
thereto, IT IS HEREBY ORDERED that
Motion is GRANTED.

1990, on
to File a
response
Plaintiff's