Deliverance Poker, LLC v. Tiltware, LLC et al

Filing 19

MOTION for Leave to File Plaintiff's First Motion for Leave to Amend and File First Amended Complaint and Brief in Support by Deliverance Poker, LLC. (Attachments: # 1 Exhibit A)(Demond, William)

Deliverance Poker, LLC v. Tiltware, LLC et al

Doc. 19

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION DELIVERANCE POKER, LLC, Plaintiff, vs. TILTWARE, LLC AND MICHAEL MIZRACHI, Defendants. § § § § § § § § § §

CIVIL ACTION NO. 1:10-CV-00664-JRN

PLAINTIFF'S FIRST MOTION FOR LEAVE TO AMEND AND FILE FIRST AMENDED COMPLAINT AND BRIEF IN SUPPORT TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Deliverance Poker, LLC ("Plaintiff" or "Deliverance"), hereby submits Plaintiff's First Motion for Leave to Amend and File First Amended Complaint and Brief in Support and would respectfully show this Court as follows: I. 1. PROCEDURAL BACKGROUND

Deliverance originally filed this suit on September 7, 2010 to redress breach of contract

and tortious interference with existing contract per diversity jurisdiction. 2. On September 29, 2010, Defendant Michael Mizrachi ["Mizrachi"] served his Answer on

Deliverance. 3. On October 8, 2010, Plaintiff filed its Notice of Voluntary Dismissal Without Prejudice

as to Defendant Tiltware, LLC ["Tiltware"].

PLAINTIFF'S FIRST MOTION FOR LEAVE TO AMEND AND FILE FIRST AMENDED COMPLAINT AND BRIEF IN SUPPORT

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Dockets.Justia.com

II. 4.

SUMMARY OF AMENDMENT

Plaintiff seeks leave to amend to remove Tiltware as a named Defendant herein (Tiltware

has already been removed as a party by virtue of Plaintiff's Notice of Voluntary Dismissal Without Prejudice) and correspondingly remove all related causes of actions thereto. A true and correct copy of the proposed Plaintiff's First Amended Complaint is attached hereto as Exhibit A. 5. Furthermore, Mizrachi has conducted himself as if the Deliverance Contract were in full

force and effect for approximately one year by 1) accepting the benefits associated therewith (i.e. $150,000 in cash, a 1.75% interest in Deliverance Poker, LLC, and expenses up to $155,000) and 2) honoring his obligations under the contract (by playing in poker tournaments and wearing Plaintiff's logos on his clothes). However, Defendant Mizrachi's Answer for the first time asserts that the Deliverance Contract never became effective and was therefore terminated. 6. Accordingly, Plaintiff, in its First Amended Complaint, pleads additional facts

specifically addressing the Effective Date. Plaintiff specifically alleges that it fully satisfied all requirements for rendering the Deliverance Contract effective; however in the unlikely event it were found that Plaintiff did not strictly comply with the requirements for rendering the contract effective, Plaintiff includes the additional/alternative theories for enforcing the contract (namely, waiver, ratification, and estoppel). Defendant 1) has waived any claim that he might have had that the contract never became effective by accepting the benefits under the contract and honoring the contract for approximately one year; 2) has ratified the existence of the contract; and 3) deliberately, and with full knowledge, induced others to rely on the existence of the contract and therefore must be estopped from claiming otherwise.

PLAINTIFF'S FIRST MOTION FOR LEAVE TO AMEND AND FILE FIRST AMENDED COMPLAINT AND BRIEF IN SUPPORT

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III. 5.

GROUNDS FOR MOTION

FED. R. CIV. P. 15(a) provides, in part: "[A] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within twenty (20) days after is is served. Otherwise, a party may amend the party's pleading only be leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."

6.

The grant or denial of leave to amend is within the discretion of the trial court (Foman v.

Davis, 371 U.S. 178, 182 (1962)); however, such discretion is limited by Rule 15(a), in that it indicates that "leave shall be freely given when justice so requires." FED. R. CIV. P. 15(a); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597 (5th Cir. 1981). Rule 15(a) complements the underlying policies of the Federal Rules in that pleadings are only a means to facilitate a decision on the merits rather than on mere technicalities. See Foman, 371 U.S. at 182; Dussouy, 660 F.2d at 598; CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1473. Rule 15(a) provides for a liberal amendment policy which is limited by consideration of judicial economy and fairness to the non-movant. Nance v. Gulf Oil Corp., 817 F. 2d 1176, 1180 (5th Cir. 1987). 7. Unless there is a substantial reason to deny leave to amend, the discretion of the trial

court is not broad enough to permit denial. Dussouy, 660 F.2d at 598. Factors which may justify denial of a motion for leave to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party, and futility of amendment." Foman, 371 U.S. at 182. A trial court may also consider judicial economy and the most expedient way to dispose of the merits of the litigation when considering a motion for leave to amend. Dussouy, 660 F.2d at 598.
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In the absence of any reasons which might justify denial of a motion for leave to amend, leave to amend should be freely given. Foman, 371 U.S. at 182. 8. A motion for leave to amend can be made at any stage of litigation, and if no prejudice is

found, leave will normally be granted. CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1484. In fact, leave to amend has been granted at some of the latest stages of litigation, including post-discovery, post-pretrial conferences, at a hearing on a motion to dismiss, at a hearing on a motion for summary judgment, after a motion to dismiss has been granted, when the case is on the trial calendar and a hearing is already set, at the beginning, end, and/or close of trial, after entry of judgment, and even on appeal. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1488 and cases cited therein at n.3-12. 9. Leave to amend is appropriate where a plaintiff can simply file a new action to assert the

requested additional claim; otherwise denial of leave to amend would violate the directive in FED. R. CIV. P. 1 to construe the rules so as to ensure the just, speedy, and inexpensive determination of every action. See Dussoy, 660 F.2d at 600. Further, where amendment would do no more than state an alternative theory of recovery, the amendment should be granted. See Foman, 371 U.S. at 182. Finally, if the trial court can impose certain conditions in order to protect the party opposing the amendment from any possible prejudice that might result from the amendment, then there is no justifiable reason for not allowing the amendment. CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1486. 10. Amendments to pleadings should be liberally allowed in order to the achieve the ends of

justice. Gillespie v. U.S. Steel Corp., 379 U.S. 148, 158 (1964). The underlying policy of FED. R. CIV. P. 15(a) is to freely allow amendments unless the rights of an adverse party would be
PLAINTIFF'S FIRST MOTION FOR LEAVE TO AMEND AND FILE FIRST AMENDED COMPLAINT AND BRIEF IN SUPPORT 4

unduly prejudiced, and this policy is certainly the strongest where the motion concerned is the party's first motion to amend. Thompson v. New York Life Ins. Co., 644 F.2d 439, 444 (5th Cir. 1981) (citations omitted). 11. In this case, granting leave to amend is appropriate because none of the factors which

might justify denial of the motion are present. See Foman, 371 U.S. at 182 (listing factors). Plaintiff has not exhibited any undue delay, bad faith, or dilatory motive in filing this motion. There has been no repeated failure to cure deficiencies by previously allowed amendments. This is Plaintiff's first motion to amend its complaint. Defendant Mizrachi will not be unduly prejudiced by these amendments. First, this motion is being timely filed before the Court. Second, the parties have not exchanged any discovery and have the entire discovery period remaining. 12. Allowing amendments in this case will promote judicial economy and the underlying

purpose of the Federal Rules to promote the just, speedy and inexpensive termination of this action. See FED. R. CIV. P. 1. IV.CONCLUSION AND PRAYER For the above reasons, this Court should grant Plaintiff's First Motion for Leave to Amend and File First Amended Complaint and Brief in Support and allow Plaintiff to file its First Amended Complaint (a true and correct copy is attached hereto as Exhibit A) with the other papers in this case. WHEREFORE, Plaintiff respectfully prays that this Court grant Plaintiff's First Motion for Leave to Amend and File First Amended Complaint and Brief in Support and allow Plaintiff to file its First Amended Complaint.

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Respectfully submitted, By: /s/ William Pieratt Demond William Pieratt Demond Texas State Bar No. 24058931 CONNOR & DEMOND, PLLC 701 Brazos Street, Suite 500 Austin, Texas 78701 Telephone: [phone] Facsimile: [phone] Email: [e-mail] ATTORNEY FOR PLAINTIFF DELIVERANCE POKER, LLC Richard E. Gray, III Texas State Bar No. 08328300 Douglas M. Becker Texas State Bar No. 02012900 John D. Jacks Texas State Bar No. 00785986 GRAY & BECKER, P.C. 900 West Avenue Austin, Texas 78701 Telephone: [phone] Facsimile: [phone] CO-COUNSEL FOR PLAINTIFF DELIVERANCE POKER, LLC CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of October 2010, I electronically filed the above and foregoing Plaintiff's First Motion for Leave to Amend and File First Amended Complaint and Brief in Support with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following counsel for Defendant:

John P. Henry The Law Offices of John Henry, P.C. P.O. Box 1838 Round Rock, Texas 78680

/s/ William Pieratt Demond William Pieratt Demond

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CERTIFICATE OF CONFERENCE This certifies that undersigned counsel conferred with Counsel for Defendant, Michael Mizrachi, in compliance with Local Rule 7(h). On October 15th, William Pieratt Demond, Counsel for Plaintiff, conferred with John P. Henry, Counsel for Defendant, Michael Mizrachi, via telephone regarding Plaintiff's First Motion for Leave to Amend and File First Amended Complaint and Brief in Support. Mr. Henry indicated that Defendant does not oppose the relief requested in this Motion. /s/ William Pieratt Demond William Pieratt Demond

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