VIBO Corporation, Inc. v. U.S. Flue-Cured Tobacco Growers, Inc. et al

Second MOTION for Leave to File Second Amended Complaint

S.D. Fla.January 2, 2018

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO: 17-22034-WILLIAMS/TORRES VIBO CORPORATION, INC., d/b/a GENERAL TOBACCO, Plaintiff, vs. U.S. FLUE-CURED TOBACCO GROWERS, INC., PREMIER MANUFACTURING, INC., and HOBART ANDERSON, in his individual capacity as a de facto Agent of the Bureau of Alcohol, Tobacco, Firearm and Explosives of the United States Department of Justice (“ATF”), Defendants. ______________________________________/ PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW Plaintiff, VIBO CORPORATION, INC., d/b/a GENERAL TOBACCO, by and through undersigned counsel, and pursuant to the Scheduling Order entered herein (DE#4) and S.D. Fla. L.R. 7.1, hereby moves for an order permitting it leave to file a Second Amended Complaint. In accordance with S.D. Fla. L.R.15-1, a copy of the proposed Second Amended Complaint is attached. The proposed Second Amended Complaint narrows the scope of the case by dropping unnamed Governmental Defendants, and setting forth factual allegations to which Plaintiff did not have access until recently. Additional bases and reasons for this Motion are set forth more fully in the incorporated Memorandum of Law as required by S.D. Fla. L.R. 7.1(a)(1). Case 1:17-cv-22034-KMW Document 25 Entered on FLSD Docket 01/02/2018 Page 1 of 6 2 MEMORANDUM OF LAW Fed. R. Civ. P. 15(a) provides that a plaintiff may amend his or her complaint once as a matter of course within twenty-one days after serving it or within twenty-one days after the earlier of service of the responsive pleading or service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Thereafter, a plaintiff may amend his or her complaint only with the opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). The Scheduling Order entered herein (DE#4) permits the parties until December 31, 2017 to seek leave to amend pleadings, and, as the designated date fell on a weekend which was followed by a holiday, this Motion is timely filed. Fed. R. Civ. P. 6(a)(3). Generally, district courts are encouraged to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); 126th Ave. Landfill, Inc. v. Pinellas County, Florida, 459 F. App'’x 896, 897 n.1 (11th Cir. 2012). In cases where the opposing parties suffer no prejudice from the proposed amendment, the Court has discretion to allow a party to broaden or correct their claims or affirmative defenses. See Jameson v. Arrow Co., 75 F.3d 1528, 1534 (11th Cir. 1996) (“The decision whether to grant leave to amend is within the sound discretion of the trial court.”) and Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1405 (11th Cir. 1994) (where a party is on notice of an intended affirmative defense, courts do not abuse their discretion in granting leave to amend). This case is in its infancy, and counsel for undersigned’s communication from Tobacco Companies Defendants did not reveal, nor could there be any prejudice by permitting the filing of the Second Amended Complaint. Further, as alleged in the First Amended Complaint, and as alleged, in the proposed Case 1:17-cv-22034-KMW Document 25 Entered on FLSD Docket 01/02/2018 Page 2 of 6 3 Second Amended Complaint, the primary sources of the allegations on the details of actions by Tobacco Companies Defendants, on which relief is sought, are attributed to prospective witnesses and/or parties who are or have been confidential informants for law enforcement agencies of the United States, particularly the Bureau of Alcohol, Tobacco, Firearm and Explosives of the United States Department of Justice (“ATF”) and the Federal Bureau of investigation (“FBI”). Several of the prospective witnesses in the instant action, and the principal sources, identified in the First Amended Complaint, and in the proposed Second Amended Complaint, as unnamed confidential informant and unnamed Special ATF agent, are currently involved in litigation in which Tobacco Companies Defendants are plaintiffs. U. S. Tobacco Cooperative, Inc., U. S. Flue-Cured Tobacco Growers, Inc., et al. v. Big South Wholesale of Virginia, LLC. Civil Action No. 5:13- CV- 00527, United States District Court, Eastern District of North Carolina. Based on information and belief, the litigants and filings in that case were under a blanket seal order granting the related motion (DE#14, August 8, 2013), due to the law enforcement activities which are alleged to have played a role in the issues in dispute. Some of those very same activities involving two parties to that litigation are also involved in this case; unnamed confidential informant and U.S. Flue- Cured, of which Premier Manufacturing is a wholly owned subsidiary. The blanket order was modified, based on Motion to Unseal (DE#825, June 27, 2017), and permission was allowed to limit redaction; that process was underway until an interlocutory appeal (DE#1008, September13, 2013) was taken. Plaintiff has exercised due diligence in obtaining whatever information it can since the redaction began, and is still in the process of gathering discoverable information related to this claim. There will be no discernible prejudice on the Defendants if this Motion is granted Case 1:17-cv-22034-KMW Document 25 Entered on FLSD Docket 01/02/2018 Page 3 of 6 4 and; For the foregoing reasons, Plaintiff requests that this Court enter an order permitting it to file its Second Amended Complaint forthwith. CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to S.D. Fla. L.R. 7.1, I have conferred with counsel for U.S. FLUE-CURED TOBACCO GROWERS, INC., and PREMIER ANUFACTURING, INC., (Tobacco Companies Defendants) and with Defendant Hobart Anderson in a good faith effort to resolve the issues raised in the Motion and Defendant Anderson has authorized the undersigned to state that he does not oppose the granting of this Motion; Tobacco Companies Defendants oppose the granting of same. Respectfully submitted, Law Offices of Gary, Williams, Parenti & Watson Waterview Professional Building 221 S.E. Osceola Street Stuart, Florida 34994 Telephone: (772) 283-8260 Facsimile: (772) 219-3365 Electronic Mail: attylowms@gmail.com Attorneys for Plaintiff General Tobacco BY: _s/___Lorenzo Williams Lorenzo Williams Florida Bar Number: 249874 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 2nd, 2017, I electronically filed the foregoing document with the Clerk of the court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on Case 1:17-cv-22034-KMW Document 25 Entered on FLSD Docket 01/02/2018 Page 4 of 6 5 the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/_Lorenzo Williams Lorenzo Williams, Esq. SERVICE LIST CASE NO: 17-22034-WILLIAMS/TORRES David M. DeMaio, Esq. David.demaio@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 701 Brickell Avenue Suite 1600 Miami, FL 33131-2813 PH: 305-374-0506 FAX: 305-374-0456 Allen M. Gardner, Esq. Latham & Watkins 555 11th Street NW Washington, DC 20004-1304 PH: 202-637-2200 E-mail: allen.gardner@lw.com Brian A. Lichter, Esq. Latham & Watkins 555 11th Street NW Washington, DC 20004-1304 PH: 202-637-2200 E-mail: brian.lichter@lw.com Case 1:17-cv-22034-KMW Document 25 Entered on FLSD Docket 01/02/2018 Page 5 of 6 6 Kathryn H. Ruemmler, Esq. Latham & Watkins 555 11th Street NW Washington, DC 20004-1304 PH: 202-637-2200 E-mail: Kathryn.ruemmler@lw.com Tevis Marshall, Esq. OGLETREE, DEAKINS, NASH, SMOAK, & STEWART, P.C. 901 East Byrd Street, Suite 1300 Richmond, VA 23219 PH: 804-663-2333 E-mail: tevis.marshall@ogletreedeakins.com Counsel for U.S. Flue-Cured Tobacco Growers, Inc., and Premier Manufacturing, Inc. Hobart Anderson 162 Deering Court Russell, Kentucky 41169 Defendant Method of Service: United States Mail Case 1:17-cv-22034-KMW Document 25 Entered on FLSD Docket 01/02/2018 Page 6 of 6