2007-05-31 Memo in OppSTATE OF MINNESOTA
DISTRICT COURT
COUNTY OF WRIGHT TENTH JUDICIAL DISTRICT
Case Type: Declaratory Judgment/Breach of Contract
T/C Homes, Inc., Court File No. CV-06-4997
Plaintiff and Cross Claimant,
vs.
Gold Key Development, Inc.,
Defendant and Third Party Plaintiff,
vs.
Hedlund Engineering,
Third Party Defendant,
and
City of Albertville,
Defendant and Third Party Plaintiff.
vs.
T/C HOMES, INC. IS
MEMORANDUM OF LAW
IN RESPONSE TO
CITY OF ALBERTVILLE'S
MOTION TO AMEND
SHORT-ELLIOTT-HENDRICKSON, INCORPORATED
Third Party Defendant and Cross Defendant.
Gold Key Development, Inc.
Plaintiff,
V.
City of Albertville,
Defendant and Third Party Plaintiff,
�l
SHORT-ELLIOTT-HENDRICKSON, INCORPORATED
Third Party Defendant,
Court File No. CV-06-2998
STPLWord:103658.1 I
The City of Albertville's assertion that it has moved to amend the Scheduling Order
based upon Majestic and Legacy's pending motion to intervene must be critically reviewed.
First, the City's Motion to Amend the Scheduling Order predated Majestic's and Legacy's
intervention. Second, the City's proposed amendment to the scheduling order goes far beyond
the limited scope of the amendment suggested by Majestic and Legacy. That is, Majestic's and
Legacy's claims exactly mirror those of T/C Homes, Inc. ("T/C") and, therefore, the amount
of prejudice and burden associated with the claims of Majestic and Legacy is comparatively
minimal. Finally, the Motion to Amend the Scheduling Order is really predicated upon the
City's intent to vastly expand its claims and open an entire new round of discovery relating to
its new asserted counterclaim.
While T/C has no objection to extending discovery to permit additional inquiry into the
new claims made by Majestic and Legacy, it does object to vastly expanding discovery and
permitting amendment to the City's pleadings at this late stage in the litigation. ' Majestic's
and Legacy's proposed intervention benefits judicial economy by permitting global resolution
of all issues with all affected parties. In contrast, the City's proposed amendment seeks to add
a new theory at the close of discovery, severely prejudicing all parties. Substantial new
discovery would be required from the City, its experts, as well as written discovery to analyze
the City's new claims. This lies in stark contrast to Majestic's and Legacy's claims which
mirror T/C's claims and are not predicated upon any new legal theory or facts.
' T/C incorporates by reference and adopts the arguments made by Gold Key in its May
30, 2007 memorandum in opposition to the City's proposed amendment.
STPL-Word:103655.1 2
Accordingly, T/C opposes the City's proposed amendment to its counterclaim and
respectfully requests that the Scheduling Order be modified only to permit discovery against
Legacy and Majestic as proposed in their
Dated: May 31, 2007
By:
ep en E. Yoc:
444 Ce treet, Suite
St. Paul, MN 55101-2
651-312-6029
ATTORNEYS FOR T
, FENLON & VOGT, P.A.
7,
INC.
STPL-Word:103658.1 3
STATE OF MINNESOTA )
) ss. AFFIDAVIT OF SERVICE BY E-MAIL
COUNTY OF RAMSEY ) AND U.S. MAIL
Deborah S. Murphy, being first duly sworn, deposes and says that on May 31, 2007, she
served a true and correct copy of T?C Homes, Inc.'s Memorandum of Law in Response to
City of Albertville's Motion to Amend by e-mail and in St. Paul, Minnesota, first class mail,
postage prepaid, in an envelope addressed to the following persons:
Mr. Jason J. Kuboushek
Iverson Reuvers, LLC
9321 Ensign Avenue South
Bloomington, MN 55438
F: 952 946 1501
Ms. Cindi S. Matt
Johnson, Larson, Peterson & Matt, P.A.
908 Commercial Drive
Buffalo, MN 55313
F: 763-682-4465
Subscribed and sworn to before me
this 31 May 2007.
of y Publi
LORI J. LOKEN
Ndwy � Me
N
A C Wnu r 8",i 31i
Mr. Robert W. Kettering, Jr.
Mr. Anton J. van der Merwe
Arthur Chapman
81 South Ninth Street, Suite 500
Minneapolis, MN 55402-3214
F: 612-339-7655
Mr. John A. Markert
Coleman, Hull & Van Vliet, PLLP
8500 Normandale Lake Blvd., Suite 2100
Minneapolis, MN 55437
F: 952-841-0041