Pacific Cycle, Inc. v. PowerGroup International, LLC et al

Filing 108

ORDER that defendants are to respond by 10/16/13 to plaintiff's request that, in the alternative, it be allowed to amend the complaint. Signed by District Judge William M. Conley on 10/11/13. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PACIFIC CYCLE, INC.,
Plaintiff,

ORDER

v.
12-cv-529-wmc
POWERGROUP INTERNATIONAL, LLC
(a/k/a POWERGROUP, INTERNATIONAL,
INC.), TOMBERLIN AUTOMOTIVE GROUP,
INC., and MICHAEL TOMBERLIN,
Defendants.
This case is set for trial to the bench on October 28, 2013, to resolve plaintiff Pacific
Cycle’s claim that defendants Michael Tomberlin and Tomberlin Automotive Group, Inc. are
jointly and severally liable to plaintiff for damages arising from defendant PowerGroup’s
breach of contract with Pacific Cycle. The parties’ pretrial submissions reveal that a dispute
exists as to whether plaintiff should be limited at trial to pursuing joint and several liability
solely under an alter-ego theory, or whether it may also pursue theories of successor and joint
venture liability.
Although the parties’ arguments up to this point have focused on whether Pacific Cycle
adequately pled these latter two theories in its complaint, plaintiff’s latest submission on jury
instructions also contains a belated request that it be granted leave to amend its complaint in
the event the court disagrees about the adequacy of the original pleading. (Dkt. #102, pg. 5-8.)
While defendants would typically be entitled to respond to this request for alternative relief,
the court’s automated filing system does not calendar a response to such a request unless filed
as a separate motion. Still, plaintiff’s request is not frivolous and is, at least, one approach the
court was considering in any event.
Accordingly, defendants may have until October 16, 2013, in which to file a response to
plaintiff’s request that, in the alternative, it be allowed to amend its complaint. Given the
amount of paper already devoted by the parties to this subject, the court respectfully requests

that defendants’ reply be reasonably brief and focused on the issues of delay and prejudice, if
any, from the addition of what appear to be closely intertwined theories of liability.
Entered this 11th day of October, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge 

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