Conitz v. Teck Cominco Alaska Inc.

MEMORANDUM in Support of Motion to File Third Amended Complaint

D. AlaskaAugust 17, 2007

Conitz v. Teck Cominco, Case No. 4:06-CV-00015 RRB Points and Authorities Supporting Motion to File Third Amended Complaint Page 1 of 4 KENNETH L. COVELL LAW OFFICE OF KENNETH L. COVELL 712 Eighth Avenue Fairbanks, Alaska 99701 Phone: 907.452.4377 Fax: 907.451.7802 kcovell@gci.net IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA GREGG CONITZ, ) ) Plaintiff ) ) vs. ) ) TECK COMINCO ALASKA, INC., ) ) Defendant ) ______________________________) Case No. 4:06-CV-00015 RRB POINTS AND AUTHORITIES SUPPORTING MOTION TO FILE THIRD AMENDED COMPLAINT COMES NOW, Gregg Conitz, by and through undersigned counsel, The Law Office of Kenneth L Covell, and hereby supports his Motion to File Third Amended Complaint with the following Points and Authorities. The amendments to the Complaint include a demand for punitive damages pursuant to 42 USC § 1981, Title VII of the Federal civil Rights Act, AS18.80.220 and Alaska tort law. Conitz will also conform the Complaint to the facts now revealed during the discovery process. Case 4:06-cv-00015-RRB Document 47 Filed 08/17/2007 Page 1 of 4 Conitz v. Teck Cominco, Case No. 4:06-CV-00015 RRB Points and Authorities Supporting Motion to File Third Amended Complaint Page 2 of 4 FRCP 15(a) establishes a policy of liberal opportunity to amend pleadings absent some prejudice to the opposition. Denial of a motion to amend is 'strictly' reviewed in light of the strong policy permitting amendment.'" Moore v. Kayport Package Express, 885 F.2d 531, 537 (9th Cir. 1989) (quoting Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir. 1988) (citation omitted)). The relevant factors to consider when addressing a motion to amend are: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.'" United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502, 1511 (9th Cir. 1991) (quoting Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1254 (9th Cir. 1981), see also, Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991). TCAK cannot seriously complain of bad faith or futility. "Undue delay is a valid reason for denying leave to amend." Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1454 (9th Cir. 1990). The first depositions have just been taken. Discovery is in its infancy. There is no undue delay. Some courts have stressed prejudice to the opposing party as the key factor. Jackson v. Bank of Hawaii, 902 F.2d 1385, Case 4:06-cv-00015-RRB Document 47 Filed 08/17/2007 Page 2 of 4 Conitz v. Teck Cominco, Case No. 4:06-CV-00015 RRB Points and Authorities Supporting Motion to File Third Amended Complaint Page 3 of 4 1387 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 330-31, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971)). TCAK has already been put on notice of the claims against it. Now that there is sufficient information to allege that the upper management of TCAK discriminated in the face of a perceived risk that its acts might violate federal law punitive damages can be pled without running foul of FRCP 11. Conitz’s Motion to File a Third Amended Complaint must be granted. Plaintiff's counsels' office contacted defense counsel Halloran's office and could not reach agreement. Respectfully submitted this 17th day of August, 2007 at Fairbanks, Alaska. LAW OFFICES OF KENNETH L. COVELL Attorney for Plaintiff, Gregg Conitz s/Kenneth L. Covell 712 8th Ave. Fairbanks, AK 99701 Phone: 907.452.4377 Fax: 907.451.7802 E-mail: kcovell@gci.net Attorney Bar #: 8611103 Case 4:06-cv-00015-RRB Document 47 Filed 08/17/2007 Page 3 of 4 Conitz v. Teck Cominco, Case No. 4:06-CV-00015 RRB Points and Authorities Supporting Motion to File Third Amended Complaint Page 4 of 4 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been Served electronically, via ECF to the following attorney(s): Sean Halloran Thomas M. Daniel – TDaniel@perkinscoie.com Dated: 08/17/2007 By: /s/ Emily S. Ervin Emily S. Ervin for Kenneth L. Covell Case 4:06-cv-00015-RRB Document 47 Filed 08/17/2007 Page 4 of 4