2007-05-23 Memo of Law in Supp of Motion to AmendSTATE OF MINNESOTA DISTRICT COURT
COUNTY OF WRIGHT TENTH JUDICIAL DISTRICT
CASE TYPE: Declaratory Judgment/Breach of Contract
Gold Key Development, Inc., Court File No. 86-CV-06-2998
a Minnesota corporation,
Plaintiff,
vs.
City of Albertville,
Defendant/Third Party Plaintiff,
vs.
Short Elliott Hendrickson, Inc.,
Third Party Defendant.
T/C Homes, Inc., a Minnesota corporation, Court File No. 86-CV-06-4997
Plaintiff,
vs.
Gold Key Development, Inc., a Minnesota corporation,
Defendant, Third Party Plaintiff,
vs.
Hedlund Engineering,
Third Party Defendant,
and
City of Albertville,
Defendant/Third Party Plaintiff,
vs.
Short Elliott Hendrickson, Inc.,
Third Party Defendant.
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______________________________________________________________________________
CITY OF ALBERTVILLE’S MEMORANDUM OF LAW IN
SUPPORT OF ITS MOTION TO AMEND THE SCHEDULING ORDER
AND ITS COUNTERCLAIM AGAINST GOLD KEY
______________________________________________________________________________
INTRODUCTION
The City requests an amendment of the scheduling order because two new parties –
Majestic Builders and Legacy Homes are seeking to intervene in this suit. Additional time will
be necessary to conduct discovery regarding the two new parties and their relationship and
interaction with the existing parties. Moreover, on May 23, 2007, the City received a verbal
notice of violation from the Minnesota Pollution Control Agency (“MPCA”) regarding the storm
water ponds in the Prairie Run subdivision. Accordingly, the City also seeks to amend its
Counterclaim against Gold Key to require appropriate remediation.
ARGUMENT
I. THE PROPOSED ADDITION OF TWO NEW PARTIES NECESSITATES
THE AMENDMENT OF THE SCHEDULING ORDER.
Minnesota Rule of Civil Procedure 16.02 provides a scheduling order shall not be
modified “expect by leave of court upon a showing of good cause.” See also District Court Rule
of Practice 111.04. The addition of two new parties, asserting significant financial claims
against the City is sufficient good cause to extend the deadlines in the scheduling order.
Because of the addition of two new parties, the City also seeks to amend the scheduling
order to extend the discovery deadline, the dispositive and non-dispositive motions deadline and
trial 90 days.1 This will provide the City with adequate time for additional discovery related to
the two new parties and the counterclaims and cross-claims between the new and existing
1 The current discovery deadline is set to expire June 15 and the motion deadline is
August 1. Trial is set for December 17, 2007.
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parties. The City has been advised these claims are substantial and exceed one million dollars.
As a result, the City needs adequate time to properly investigate and conduct discovery related to
these new claims.
The City has been diligent in conducting discovery and in responding to discovery. The
addition of two new parties, however, will affect the City’s ability to conduct discovery within
the constraints of the current scheduling order. The City will need to conduct written discovery
and depositions to learn about Majestic Builders and Legacy Homes damage evidence and
evidence supporting their theories of liability. The additional claims for damages will also
necessitate the need to take Gold Key’s deposition to learn about its interaction with the two new
parties and about its damages related to the two new parties. In light of the nature of the claims
asserted against the City, a 90-day extension to the deadlines in the scheduling order is
reasonable. Additionally, a new trial date in March would still be prior to the 2008 construction
season and prior to the spring Parade of Homes. Therefore, the City requests the Court grant a
90-day extension to the deadlines in the scheduling order.
II. NEW EVIDENCE REQUIRES THE CITY TO AMEND ITS COUNTERCLAIM
AGAINST GOLD KEY.
Minnesota Rule of Civil Procedure 15.01 governs amendments to pleadings. Once the
period for amendment as of right expires by service of responsive process, any amendments may
only be made by leave of court or by written consent of the adverse party. See Minn. R. Civ. P.
15.01; Herr S. Haydock, Minnesota Practice, Civil Rules Annotated § 15.01 (3rd Ed. 1998). In
addition to the two ways in which a party can amend a pleading after a responsive pleading has
been filed (by leave of court or written consent), the rule states leave shall be freely given when
justice so requires. See Minn. R. Civ. P. 15.01. Whether leave should be given in a particular
case depends upon a number of factors, including whether the adverse party would be
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prejudiced, and whether the prejudice suffered by the adverse party can be weighed against the
prejudice suffered by the moving party if leave is denied. See Wilson v. City of Eagan, 297
N.W.2d 146, 151 (Minn. 1980). “[T]he liberality to be shown in the allowances of amendments
to pleadings depends in part upon the stage of the action and in a great measure upon the facts
and circumstances of the particular case.” Bebo v. Delander, 632 N.W.2d 732, 741 (Minn. App.
2001).
On May 23, 2007, the City received a verbal notice of violation from the MPCA
regarding the storm water ponds in the Prairie Run subdivision. The City was also informed a
formal written notice of violation will be sent within the next week. Because the City believes
this violation is directly related to the current lawsuit and Gold Key’s breach of the Development
Agreement, the City seeks to amend its Counterclaim against Gold Key to require appropriate
remediation. See Aff. of Kuboushek (May 25, 2007), Exh. A - Proposed Answer and Amended
Counterclaim.
In determining whether or not to allow an amendment, the Court may look at whether or
not the adverse party would be prejudiced and whether the prejudice suffered by the adverse
party can be weighed against the prejudice suffered by the moving party if leave is denied. See
Wilson, 297 N.W.2d at 151. Here, the City had given Gold Key prior notice it believed the storm
water ponds violated MPCA rules and regulations. See Aff. of Leichty (May 4, 2007). Therefore,
Gold Key was put on notice there may be a MPCA violation over twenty days ago. Moreover, as
soon as the City was advised by MPCA of the violation, it moved to amend its Counterclaim. It
has not waited or sought to amend after the discovery or motion deadlines. See District Court
Rule of Practice 111.04. Accordingly, the City requests the Court grant its Motion to Amend its
Counterclaim against Gold Key.
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In addition to adding language regarding the MPCA violation, the City also seeks to
clarify the ordinances which the Prairie Run subdivision violates. This clarification is consistent
with the evidence which has been presented in the case and will not prejudice Gold Key.
Accordingly, the City requests the Court allow it to amend its Counterclaim against Gold Key.
CONCLUSION
The City respectfully requests the Court grant its Motion to Amend the Scheduling Order
due to the proposed intervention of two new parties and its Motion to Amend its Counterclaim
against Gold Key in light of the new evidence concerning the MPCA violation.
IVERSON REUVERS
Dated: June 13, 2023 By__________________________
Paul D. Reuvers, #217700
Jason J. Kuboushek, #304037
Attorney for Defendant City of Albertville
9321 Ensign Avenue South
Bloomington, Minnesota 55438
Telephone: (952) 548-7200