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2007-05-30 Memo in OppSTATE OF MINNESOTA COUNTY OF WRIGHT DISTRICT COURT TENTH JUDICIAL DISTRICT CASE TYPE: Declaratory Judgment/Breach of Contract Court File No. 86-CV-06-2998 Gold Key Development, Inc., 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, Plaintiff, VS. Court File No. 86-CV-06-4997 GOLD KEY'S MEMORANDUM OF LAW REGARDING MOTION TO INTERVENE Gold Key Development, Inc., a Minnesota corporation BY MAJESTIC AND LEGACY AND CITY'S MOTION TO AMEND Defendant/Third Party Plaintiff, SCHEDULING ORDER AND vs. TO AMEND ITS COUNTERCLAIM I:Cl1:11�6.3IRES)1XL4W, Hedlund Engineering, Third Party Defendant, VS. City of Albertville, Defendants/Third Party Plaintiff, VS. Short Elliott Hendrickson, Inc. Third Party Defendant. PROCEDURAL BACKGROUND The facts are set forth in great detail in Gold Key's Memorandum in Support of its Motion for Partial Summary Judgment. encourages the Court to read the same. Gold Key incorporates those facts herein and Gold Key initially sued the City for breach of development agreement and declaratory judgment in May 2006. TC Homes sued the City and Gold Key in July 2006. The two actions were consolidated by stipulation in August 2006. Hedlund Engineering was made a party to this litigation in August 2006. SEH was made a party to this litigation in October 2006. Since early 2007, virtually every party has a claim of some sort against virtually every other party. The initial Scheduling Order had a discovery deadline of February 15, 2007, motion deadline of April 1, 2007 and a trial date of August 20, 2007. In February 2007, the parties stipulated to the amendment of the Scheduling Order to extend the deadlines to June 15, 2007 (discovery deadline), August 1, 2007 (motion deadline) and December 17, 2007 (trial date). Extensive, exhaustive and comprehensive discovery has been conducted by every party. Twelve depositions have been taken. The City has noticed 7 more depositions for a date prior to June 15, 2007. Multiple sets of Interrogatories, Requests for Production of Documents and Requests for Admissions have been served on every party, and have been responded to. 10,000+ documents have been produced. The City, Gold Key and SEH have all moved for summary judgment, which is currently under advisement with Judge Halsey, I. GOLD KEY DOES NOT OPPOSE LEGACY AND MAJESTIC'S MOTION TO INTERVENE. Gold Key Development, Inc. ("Gold Key") does not oppose the intervention of Legacy and Majestic in this litigation. Indeed, for the very reasons set forth in the Memorandum of Legacy and Majestic in support of their motion to intervene, Gold Key believes it is the most efficient, cost effective and just way to proceed by allowing the intervention of Legacy and Majestic in this litigation. II. GOLD KEY OPPOSES THE CITY'S MOTION FOR A 90 DAY EXTENSION OF ALL DISCOVERY AND ALL DEADLINES, AS TO THE CLAIMS OF ALL PARTIES. The 90 day extension of the Scheduling Order as to all parties and all claims sought by the City is not necessary to accomplish the small amount of additional discovery that is necessary based upon Majestic and Legacy's intervention, and will only serve to increase the litigation costs to all seven parties and delay trial until next spring, two years after the litigation was commenced, and one and a half years after the City imposed a moratorium on building in Prairie Run. The moratorium that the City has imposed upon building in Prairie Run has put the damages of Gold Key and the three builders at in excess of five million dollars. Delaying the trial of this matter three more months will significantly increase the parties' damages and is not necessary because the parties can accomplish the discovery as to the new claims by Majestic and Legacy within 45 days and trial can proceed in December as scheduled. The City does not need 90 days for discovery as to the Majestic and Legacy claims, nor does it need an extension of the deadlines as to every party, and every claim, when extensive discovery as to the claims of the existing parties has already been completed. The claims that Majestic and Legacy are now making are virtually identical to the claims made by TC Homes in August 2006. The only difference is the specific damages claimed by Majestic and Legacy. Majestic and Legacy have agreed to make themselves available for depositions and written discovery. Gold Key has no objections to providing further discovery, including resubmitting to a deposition, as to the Majestic and Legacy claims only. Realistically, the new claims of 3 Majestic and Legacy require only the following discovery: written discovery requests from the City and three more depositions (principal of Majestic, principal of Legacy, and re -deposing Dean Johnson as to Gold Key's involvement with Majestic and Legacy). This could be accomplished within 45 days and the trial could remain set on December 17t'. The deadlines should not be extended beyond June 15, 2007 as to the claims of the existing parties. The parties have had more than adequate time to conduct discovery as to their claims. Discovery as to all of the existing claims should end as contemplated by the current Scheduling Order. The parties have all spent tens of thousands of dollars conducting extensive discovery. Clearly what the City is trying to do is: 1) delay this case into 2008 so that the spring 2008 building season will also be lost, increasing the financial pressure upon Gold Key and the builders;' 2) keep discovery open so that the City can continue searching for some factual support for its moratorium.2 The City has known that Steve Yoch would be representing Majestic and Legacy in this matter since April 2007. Instead of noticing depositions and starting discovery as to these new claims, the City sat by for two months and waited until four days before the current discovery deadline to ask the Court to extend discovery. The other parties should not suffer because of the City's failure to get started on the discovery related to the Majestic and Legacy claims. Therefore, Gold Key respectfully proposes that discovery and the deadlines be extended for 45 days as to the claims related only to Legacy and Maiestic's intervention, and that the existing schedule remain in place for all other parties and claims. 1 Despite the City's statement, at page 3 of its Memo, that trial in March will be prior to the spring Parade of Homes, as a practical matter, a trial in March means that at the earliest, the moratorium would get lifted sometime in March and building would not be completed until June, which means the builders would once again miss the peak housing market because of the City's actions. 2 This is clear from the City's motion to amend to add a new claim at this late date, since it has no factual or legal support for its existing claims, as discussed below. 2 III. THE CITY'S MOTION TO AMEND ITS COUNTERCLAIM AGAINST GOLD KEY MUST BE DENIED AS GOLD KEY WOULD BE SEVERELY PREJUDICED BY THIS LATE AMENDMENT. The City's motion to amend its counterclaim against Gold Key must be denied as Gold Key, and the other parties, would be severely prejudiced by the Court allowing amendment of the City's pleadings at this late date. The district court should freely grant leave for a parry to amend its pleadings, except where amendment would prejudice the other party. Stead -Bowers v. Langley, 636 N.W.2d 334 (Minn. Ct. App. 2001); Denman v. Gans, 607, N.W.2d 788 (Minn. Ct. App. 2000). The liberality to be shown in the allowance of amendments to pleadings depends in part upon the stage of the action and in great measure upon the facts and circumstance of the particular case. Bebo v. Delander, 632 N.W.2d 732 (Minn. Ct. App. 2001). When evaluating whether a motion for amendment of pleadings should be granted, the trial court must look at the prejudice which may result to the opposing parry. LOL Finance Co. v. Romain Corp. 352, N.W.2d 841 (Minn. Ct. App. 1984). The major consideration in the decision whether to grant leave to amend is prejudice to the opposing party. McDonald. V. Stonebraker, 255 N.W.2d 827 (Minn. 1977). The City seeks leave to amend its counterclaim to: 1) add a new alleged permit violation as a basis for Gold Key's alleged default of the Development Agreement, and 2) to "clarify the ordinances which the Prairie Run subdivision violates". As to the first basis, the City only very generally alleges that "The drainage ponds on the Prairie Run plat violate applicable Minnesota Pollution Control Agency ("MPCA") rules and regulations", and leaves Gold Key guessing as to the exact basis for the City's motion. As discussed in detail below, it is extremely prejudicial to all the parties to allow a general amendment like this at this point in the litigation. As to the second basis, the City's proposed amendments do not just "clarify" the ordinances, but instead 5 they substantively change the City's claims in a way that significantly prejudices Gold Key. This entire lawsuit has been premised upon the alleged defaults by Gold Key being defaults of the ordinances that were in effect on June 7, 2004 at the time of plat approval. Now the City seeks to amend its claims to allege defaults under current ordinances as well. (See City proposed amended counterclaim, paragraphs 61, 62, 64, 65, 67). Based upon the facts and circumstances surrounding this litigation and leading up to the City's motion, the Court must deny the City's request to amend its counterclaim. Specifically, the City's motion to amend must be denied because: 1) the late stage of this action prohibits amendment; 2) the City's motion to amend was brought only in response to Gold Key's summary judgment papers, which make it clear that the "violations" the City originally pled have no substantive factual or legal support, so the City is desperately looking for some basis to justify the moratorium that it imposed; 3) Gold Key, and the other parties, would be severely prejudiced if the Court allows the City to amend its counterclaim at this late stage in the proceeding because all of the parties would then need to assert amended claims and counterclaims against each other based upon this new alleged violation, necessitating significant additional discovery, significant delays in the deadlines and trial date, and a resulting increase in damages for the parties; and 4) the City's new alleged claim against Gold Key would not survive summary judgment. A. The City's Motion Must Be Denied Due to the Late Stage of the Proceeding It is too late in the proceeding for the City to come forward with a new alleged violation as the basis for its moratorium. The City declared Gold Key in default and has refused to issue permits since November of 2005. This case has already been in litigation for more than a year. Discovery concludes on June 15a', just four days after the hearing on this motion. Mediation has occurred (the parties paid the mediator $325 an hour to mediate the case). Experts have been retained and have expressed their opinion based upon the particular violations alleged by the City in its default letters, pleadings and discovery responses. Extensive summary judgment motions have been filed, argued and are under advisement (a quick glance at the volumes of documents filed with the Court for the summary judgment motions shows the significant reliance of the parties upon the initial pleadings of the City). Tens of thousands of dollars have been spent during discovery (12 depositions have been taken, 7 more depositions will be taken in the coming weeks, multiple sets of interrogatories, requests for production of documents and requests for admissions have been served and answered, 10,000+ documents have been produced). All of these actions have been premised upon the very specific violations alleged by the City in its counterclaims and in its discovery responses. Although trial of this matter is not until December, this is a complicated case that will require months of preparation for trial based upon the extensive discovery that has been conducted. B. The City's Motion Must Be Denied Because of the Severe Prejudice All of the Parties Will Suffer if the City is Allowed to Amend its Pleadings to Assert a New Alleged Violation. If the City is allowed to amend its counterclaim at this late stage and allege a new permit violation, Gold Key, and all of the other parties, will be severely prejudiced. All of the parties would need to amend their pleadings to assert claims against each other based upon the new alleged permit violations. Written discovery would need to be exchanged among all of the parties regarding this new alleged violation. Virtually all of the 12 individuals whose depositions have already been taken in this matter would need to be re -deposed regarding this new allegation. Re -deposing these individuals would not only cost the parties to this lawsuit a significant amount of money in attorneys fees, but it would also greatly inconvenience the deponents who are busy professionals (five engineers, a developer, a builder, an attorney, a city 7 administrator and a building inspector). One of the deponents lives in Colorado and already had to make special travel arrangements to fly here in March for his deposition. He would be greatly inconvenienced by having to fly to Minnesota again for yet another deposition. Experts would need to be retained to evaluate this new discovery information and express an opinion as to the new alleged violations. Summary judgment motions would need to be prepared, filed and argued based upon the new alleged violations. With this new proposed claim, the City is essentially putting this case back at square one. All of this would necessitate a significant extension of the discovery, motion and trial deadlines, which would result in significant prejudice to Gold Key and the builders, as discussed in section II of this memo. C. The City's Motion Must Be Denied Because It Is Merely Trying To Come Forward With An Allegation That Will Allow The Case To Continue If Summary Judgment Is Granted In Gold Key's Favor Although the City claims that it seeks to amend its pleadings because of "new evidence" regarding an MPCA permit violation that just came to light on May 23, 2007, it is clear that 1) the "evidence" is not new; 2) the City's argument regarding an alleged MPCA permit violation was crafted by the City for the first time on May 4, 2007 in the City's Memo in Response to Gold Key's Motion for Summary Judgment and merely as a way to try to defeat summary judgment and salvage its defense in this lawsuit. 1. There is no "new evidence" justifying an amendment of the pleadings. As an initial matter, the NPDES Permit documents, which apparently form the basis for the City's new allegation, are not "new evidence".3 They are documents that the City itself produced in this litigation in the summer of 2006 as bate stamp numbers CITY 0910 — CITY 0951. See Affidavit of Cindi S. Matt, Ex C and D. They are documents that the City ' Gold Key says "apparently" because the exact basis for the City's new claim is very vague and not clearly set forth in the City's proposed amended counterclaim. Therefore, Gold Key is left guessing as to the City's position, based upon the City's summary judgment responsive submissions. 3 Administrator Larry Kruse signed on in July 2004. Id. They are documents that SEH prepared sometime prior to July 2004. See Matt Aff., Exh. B at pg 151. They are documents that were introduced by Gold Key during the deposition of City Administrator Larry Kruse as Deposition Exhibits 100 and 101, and which Mr. Kruse was questioned on by Gold Key's attorney. Matt Aff. Exh. B. The City had these documents available prior to the lawsuit and for whatever reason chose not to analyze them or include them as a basis for Gold Key's alleged default back in November of 2005, or throughout this litigation when the City had its engineers examining the pleadings and preparing its defense. 2. The City is merely trying to add a new claim to salvage its defense if it loses the pending summary judgment motions. A cursory examination of the summary judgment papers that have previously been filed in this case make it clear that the City raised this argument regarding an alleged permit violation for the first time in response to Gold Key's motion for summary judgment, and as a way to try to survive summary judgment. Compare the City's Memo in Support of its Motion for Summary Judgment, filed April 17, 2007, at pages 13 and 14 (where there was no mention of alleged permit violations as the basis for default) and the City's Memo in Opposition to Gold Key's Motion for Partial Summary Judgment, filed May 4, 2007, at pages 7 & 8 (where the City alleges, for the first time, an alleged NPDES permit violation as a basis for default in order to avoid summary judgment). See Matt Aff., Exh. E & F 4 A close examination of the summary judgment papers shows that the City is attempting to amend its counterclaim now because there is absolutely no factual or legal support for the City's position set forth in its current pleadings and discovery responses regarding Gold Key's 4 The pertinent portions of the referenced summary judgment papers are attached as exhibits to Matt Aff. The complete documents are already contained in the Court file and Gold Key encourages the Court to review the same in detail. 9 alleged violation of specific zoning and subdivision ordinances.5 The City is panicking and finds itself in a difficult position and needs to attempt to find some justification for the severe action that it took with the imposition of a moratorium on building in Prairie Run. Thus, the City is making a last ditch effort to amend the pleadings to try to find some violation that will stick. It would be extremely unfair and prejudicial to Gold Key and the other parties for the City to be allowed to amend its pleadings now, after tens of thousands of dollars have been conducted on extensive and exhaustive discovery, just because the City cannot come up with factual and legal support for the allegations set forth in its original pleadings. D. The City's Motion to Amend Must Be Denied Because it Would Not Survive Summary Judgment as to This New Allegation. Further, and in any event, the City's motion to amend must be denied because the additional claim could not withstand summary judgment because there is no factual or legal support for the City's new position that there are alleged permit violations. Courts can deny motions to amend when the additional claims cannot withstand summary judgment. Ag Services of America, Inc. v. Schroeder, 693 N.W.2d 227 (Minn. Ct. App. 2005); Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn. 2004) (affirming denial of motion because motion would not survive summary judgment); M.H. v. Caritas Family Servs., 488 N.W.2d 282, 290 (Minn.1992) (upholding denial of motion to add tort claim when no facts supported claim). The City came forward with these new allegations regarding alleged MPCA permit violations on May 4, 2007, in response to Gold Key's motion for summary judgment, and because the City could not provide factual or expert support for the violations that it did plead. s See the following documents submitted as part of the summary judgment motions currently pending before the Honorable Stephen Halsey: Gold Key Memorandum of Law in Support of Motion for Partial Summary Judgment, Affidavit of Brian Mundstock, City's Motion for Summary Judgment, Affidavit of Lani Leichty, Hedlund's Memorandum in Response to City's Summary Judgment Motion and in Support of Gold Key Partial Summary Judgment Motion, Revised Affidavit of Brian Mundstock, Gold Key's Memo in Response to City's Motion for Summary Judgment, Gold Key's Reply Memorandum in Support of Motion for Partial Summary Judgment, and Supplemental Affidavit of Brian Mundstock 10 See Affidavit of Lani Leichty filed by the City on May 4, 2007 as part of its responsive summary judgment papers. As set forth in the Supplemental Affidavit of Brian Mundstock filed on May 10, 2007 by Gold Key, and in Gold Key's Reply Memo in Support of its Motion for Partial Summary Judgment, there are no genuine issues of material fact as to whether these new alleged permit violations constitute a default by Gold Key. In any event, significantly, it was the City itself (Larry Kruse), and not Gold Key, that applied for the NPDES permit a month after it approved the Plat of Prairie Run and signed the Development Agreement. (See Matt Aff, Ex B at pp 147 — 153; Matt Aff Ex C & D). In so doing, Larry Kruse, on behalf of the City, swore the information contained therein was true, accurate and complete and that the Storm Water Plan had received local LGU permitting approval. For the City to now come back and cite this as a basis to hold Gold Key in default, when the City itself submitted the permit application and represented that the Storm Water Plan had received local approval by SEH, is not only incredible, unreasonable and in bad faith, but also makes the City's claim fail as a matter of law. The City of Albertville is listed as Owner and is the permitee on the MPCA application that the City is now claiming as the "new" basis for Gold Key's default. Gold Key is listed no where on the application. Matt Aff., Ex. C. The City shows no connection or basis for the allegation that Gold Key somehow violated the MPCA permitting requirements when it was the City itself that applied for the permit. The City Administrator, Larry Kruse, admitted that SEH provided the information necessary to complete the application. Matt Aff, Ex B at pg. 151. Since there is nothing in the City's proposed amended pleadings (or in the relevant documents that exist on this issue) that would create a genuine issue of material fact as to whether Gold Key breached the permitting requirements (or even that it had anything to do with them in the first instance), the City would not, as a matter of 11 law, be able to survive summary judgment. Therefore, this Court must deny the City's motion to amend its pleadings to add this new claim. CONCLUSION The Court should grant Majestic and Legacy's motion for intervention because it is just and efficient to do so. The City's motion to extend the deadlines in the Scheduling Order by 90 days should be denied. The Court should instead order a 45 day extension as to the discovery and motion deadlines as to the Majestic and Legacy claims only, and should leave the trial set for December 17, 2007. The Court must deny the City's motion to amend its complaint because of the severe prejudice that will be suffered by the other parties if amendment is allowed at this late stage in the proceeding. JOHNSON, LARSON, PETERSON & MATT, P.A. -A - Dated: A Xv ? By: Cindi S. Matt #269359 Attorney for Gold Key Development, Inc. 908 Commercial Drive Buffalo, Minnesota 55313 (763)682-4550 12