Thompson et al v. 1-800 Contacts, Inc. et al

MOTION for Leave to File Second Amended Answer to Plaintiffs' Consolidated Amended Complaint and Memorandum in Support

D. UtahMarch 19, 2019

Attorneys for Defendant 1-800 Contacts, Inc. THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH J THOMPSON, et al., Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. 1-800 CONTACTS, INC., et al., Defendants. DEFENDANTS’ UNOPPOSED MOTION FOR LEAVE TO FILE ITS SECOND AMENDED ANSWER Case No: 2:16-cv-01183-TC Judge: Hon. Tena Campbell Magistrate Judge: Hon. Dustin Pead Defendant 1-800 Contacts files this Unopposed Motion to Amend its Answer to add eight affirmative defenses. No other changes to 1-800 Contacts answer are being made. Plaintiffs do not oppose this motion. 1-800 Contacts’ motion should be granted. BACKGROUND The Parties to this action negotiated an extension of the Scheduling Order that was submitted on February 5, 2019. A joint Stipulated Scheduling Order was submitted to Court and approved the same day. ECF 214; 215. Under the Scheduling Order, amendments to pleadings Brent O. Hatch (5715) HATCH, JAMES & DODGE, PC 10 W. Broadway, Suite 400 Salt Lake City, Utah 84101 Tel: (801) 363-6363 bhatch@hjdlaw.com Stephen Fishbein (admitted pro hac vice) SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 Tel: (212) 848-4424 SFishbein@Shearman.com Ryan A. Shores (admitted pro hac vice) Todd M. Stenerson (admitted pro hac vice) Timothy J. Slattery (admitted pro hac vice) SHEARMAN & STERLING LLP 401 9th Street NW, Suite 800 Washington, D.C. 20004 Tel: (202) 508-8000 Ryan.Shores@shearman.com Todd.Stenerson@shearman.com Tim.Slattery@Shearman.com Case 2:16-cv-01183-TC-DBP Document 219 Filed 03/19/19 Page 1 of 4 -2- were due on March 11, 2019. Fact discovery concludes on February 28, 2020. Summary judgment motions are not due for over seventeen months, on August 28, 2020. No depositions have occurred. On March 11, 2019, 1-800 Contacts filed an Amended Answer listing eight affirmative defenses not explicitly set out in the prior Answer. After doing so, on March 12, 2019, 1-800 Contacts’ counsel and Plaintiffs’ counsel began a dialogue on whether 1-800 Contacts should withdraw its March 11, 2019 Amended Answer and file a motion for leave under Rule 15(a)(2). After subsequent conversations, 1-800 Contacts agreed to file this motion for leave, which Plaintiffs agreed not to oppose.1 Plaintiffs asked that we advise the Court as follows: Plaintiffs do not object to 1-800 Contacts’ motion seeking leave to file the attached amended answer after the March 11, 2019 deadline set out in the Stipulated Amended Scheduling Order (Dkt. 215). Plaintiffs reserve all rights and arguments with respect to the amended answer, including the defenses and affirmative defenses asserted therein. Plaintiffs also have communicated to counsel for 1-800 Contacts their position that 1-800 Contacts’ purported “adopt[ion] by reference [of] any applicable affirmative defense not expressly set forth herein that is pleaded by any other Defendant in this action” is inconsistent with the Federal Rules of Civil Procedure, and that Plaintiffs view 1-800’s adoption language as without legal effect.2 LEGAL STANDARD Rule 15(a) of the Federal Rules of Civil Procedure provides that “[t]he court should freely give leave [to amend pleadings] when justice so requires.”3 “The liberal granting of motions for 1 Pursuant to discussions with Plaintiffs’ counsel, the eight affirmative defenses in the attached Amended Answer contain certain additional detail not in the version submitted on March 11. 2 1-800 Contacts seeks to amend its Answer to add eight affirmative defenses, many of which were already incorporated by reference in 1-800 Contacts’ original Answer in this case, which was filed nearly eight months ago. ECF 171, 16. 1-800 Contacts believes that the language in its original Answer sufficiently puts Plaintiffs on notice of these affirmative defenses and that the incorporation is valid. However, out of an abundance of caution, 1-800 Contacts seeks to amend its Answer to make those defenses explicit. 3 Fed. R. Civ. P. 15(a)(2). Case 2:16-cv-01183-TC-DBP Document 219 Filed 03/19/19 Page 2 of 4 -3- leave to amend reflects the basic policy that pleadings should enable a claim to be heard on its merits.”4 “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.”5 “The non-moving party bears the burden of showing that the proposed amendment is sought in bad faith, that it is futile, or that it would cause substantial prejudice, undue delay or injustice.”6 4 Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 771 F.3d 697, 706 (10th Cir. 2014) (quoting Calderon v. Kan. Dept. of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). 5 Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). 6 Corp. Stock Transfer, Inc. v. AE Biofuels, Inc., 663 F. Supp. 2d 1056, 1061 (D. Colo. 2009). Case 2:16-cv-01183-TC-DBP Document 219 Filed 03/19/19 Page 3 of 4 -4- ARGUMENT In light of the liberal standard for granting such requests, Plaintiffs bear the burden of demonstrating a legitimate ground for denying the proposed amendments,7 and Plaintiffs do not oppose the relief requested. The Stipulated Scheduling Order lists March 11, 2019, as the deadline for filing a motion to amend answers, and 1-800 Contacts filed an amended answer on that date. The deadline was only a week ago, and, during that time, 1-800 Contacts has been discussing this issue with Plaintiffs, resulting in this unopposed motion. Moreover, this case is in the early stages of litigation. The conclusion of fact discovery is over eleven months away. Allowing 1-800 Contacts to amend its Answer at this early phase would not cause any prejudice or delay. WHEREFORE, Defendant 1-800 Contacts respectfully requests that the Court grant this Unopposed Motion for Leave to File Its Second Amended Answer, such that the attached Second Amended Answer will be deemed to be filed. See Ex. 1. DATED this 19th day of March, 2019. Respectfully submitted: By: /s/ Brent O. Hatch Brent O. Hatch HATCH JAMES & DODGE Ryan A. Shores Stephen Fishbein Todd M. Stenerson Timothy J. Slattery SHEARMAN & STERLING LLP Attorneys for Defendant 1-800 Contacts, Inc. 7 See AE Biofuels, Inc., 663 F. Supp. 2d at 1061. Case 2:16-cv-01183-TC-DBP Document 219 Filed 03/19/19 Page 4 of 4