in the united states district court for the eastern...
TRANSCRIPT
4333551 1
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COREY HOWARD, )Plaintiff and )Counterclaim Defendant )
)vs. ) Cause No. 4:13 CV 2518 CEJ
)RJH ENTERPRISES LLC, )
Defendant and )Counterclaimant )
DEFENDANT’S SECOND MOTION TOAMEND ANSWER AND COUNTERCLAIM
Comes now RJH Enterprises LLC (“RJH”) and moves this Court for leave to file
its Amended Answer and Counterclaim pursuant to Rules 16(b)(4) and 15(b)(2),
F.R.C.P., and as grounds therefor states as follows:
1. Plaintiff Corey Howard filed his single-count breach of contract Complaint
against RJH on December 18, 2013 (Doc. 1). RJH filed its Answer and three-count
Counterclaim on January 27, 2014 (Doc. 8).
2. This Court issued its Track 2 Scheduling Order on February 28, 2014 (Doc.
17) and therein set this case for trial on March 2, 2015. The Scheduling Order set a date
of March 27, 2014 for amendment of pleadings.
3. The parties are still in the midst of discovery. Discovery does not close
until October 14, 2014. Plaintiffs have not yet taken any depositions.
Case: 4:13-cv-02518-CEJ Doc. #: 33 Filed: 08/22/14 Page: 1 of 3 PageID #: 203
4333551 2
4. On May 30, 2014, RJH filed its first Motion to Amend Answer and
Counterclaim (Doc. 25). The Court denied RJH’s Motion on August 1, 2014 (Doc. 32).
5. For the reasons stated in RJH’s Memorandum in Support of its Second
Motion to Amend Answer and Counterclaim, good cause exists for the Court to grant
RJH’s Instant Motion.
6. RJH seeks to amend its Answer and Counterclaim as follows:
(a) to add an allegation to the Answer (new paragraph 51) identifying
the third parties that actually provided the principal marketing activities on behalf
of Ryan and RJH and to allege that Corey did not do so;
(b) to specifically use the phrase “constructive fraud” to describe the
conduct of Corey and his co-conspirators (¶ 52 of the Answer and ¶¶ 8 and 12 of
the Counterclaim);
(c) to correct an error in a date (¶ 52 of the Answer);
(d) to add a Seventh Defense (¶ 58 of the Answer) explaining how and
why Corey’s damages claims are based on speculation and conjecture; and
(e) to add a new Count II to its Counterclaim (¶¶ 11 through 14)
alleging constructive fraud on the part of Corey separately and apart from the acts
of his co-conspirators.
7. For the convenience of the Court, RJH attaches as Exhibit 1 a red-lined
version of its Amended Answer and Counterclaim reflecting these proposed amendments.
Case: 4:13-cv-02518-CEJ Doc. #: 33 Filed: 08/22/14 Page: 2 of 3 PageID #: 204
4333551 3
8. The proposed amendments will not affect any of the dates included in the
Court’s Scheduling Order, including the deadlines for discovery and dispositive motions
or the March 2, 2015 trial setting.
9. The proposed amendments are not made for the purposes of delay, are in
good faith, and will cause no prejudice to plaintiff Corey Howard.
WHEREFORE, RJH Enterprises LLC respectfully requests that this Court grant
its second motion to file the Amended Answer and Counterclaim, the substance of which
is set forth in Exhibit A hereto.
BRYAN CAVE LLP
By /s/ Thomas E. WackThomas E. Wack E.D.Mo. No. 21849MOKaren K. Cain E.D.Mo. No. 47420MOOne Metropolitan Square211 No. Broadway, Suite 3600St. Louis, Missouri 63102(314) 259-2000 – phone(314) 259-2020 – facsimile
Attorneys for Defendant andCounterclaimant RJH Enterprises LLC
CERTIFICATE OF SERVICE
I hereby certify that on August 22, 2014, I electronically filed the foregoing with
the Clerk of the Court using the ECF system, which will send a notice of electronic filing
to all counsel of record.
/s/ Thomas E. WackAttorney for Defendant
Case: 4:13-cv-02518-CEJ Doc. #: 33 Filed: 08/22/14 Page: 3 of 3 PageID #: 205
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 1 of 18 PageID #: 206
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 2 of 18 PageID #: 207
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 3 of 18 PageID #: 208
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 4 of 18 PageID #: 209
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 5 of 18 PageID #: 210
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 6 of 18 PageID #: 211
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 7 of 18 PageID #: 212
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 8 of 18 PageID #: 213
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 9 of 18 PageID #: 214
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 10 of 18 PageID #: 215
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 11 of 18 PageID #: 216
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 12 of 18 PageID #: 217
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 13 of 18 PageID #: 218
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 14 of 18 PageID #: 219
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 15 of 18 PageID #: 220
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 16 of 18 PageID #: 221
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 17 of 18 PageID #: 222
Case: 4:13-cv-02518-CEJ Doc. #: 33-1 Filed: 08/22/14 Page: 18 of 18 PageID #: 223