FILED JULY 02, 1998
Phil Lombardi, Clerk,
U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT
FOR NORTHERN DISTRICT OF OKLAHOMA
MARVIN SUMMERFIELD and ROBIN MAYES
Plaintiffs,
v. Case No 98-CV-0328-B(EA)
MARK McCULLOUGH, et al,
Defendants.
OPPOSED* MOTION TO FOR LEAVE TO AMEND TO ADD PARTIES DEFENDANT
The plaintiffs, Marvin Summerfield and Robin Mayes hereby move the Court, pursuant to Fed. R. Civ. P (a) for leave to amend their complaint. In support of this motion, plaintiffs show the Court as follows:
1. Plaintiffs filed this action on May 5, 1998.
2. Plaintiffs filed their First Amended Complaint on May 12, 1998, seven days after the initial filing, adding defendants and additional claims.
3. In the course of Plaintiffs’ ongoing investigation, Plaintiffs have acquired further information reasonably leading them to believe that other than those presently named in the First Amended Complaint also were involved in, and are liable to the Plaintiffs for, the acts complained of by the Plaintiffs, to wit:
Upon information and belief, Plaintiffs now assert that, in the Spring of 1997 Rex Earl Starr had knowledge of the illegal wiretapping activities described in the amended complaint, and used, or attempted to use, the product of those illegal activities, in violation of federal laws and of these plaintiffs’ civil rights;
Upon information and belief, Plaintiffs now assert that, in the Spring of 1997, Jennie L. Battles had knowledge of the illegal wiretapping activities described in the amended complaint, and used, or attempted to use, the product of those illegal activities, in violation of federal laws and of these plaintiffs’ civil rights;
Upon information and belief, Plaintiffs now assert that, in the Spring of 1997, Lisa Finley had knowledge of the illegal wiretapping activities described in the amended complaint, and used, or attempted to use, the product of those illegal activities, in violation of federal laws and of these plaintiffs’ civil rights, and
Upon information and belief Plaintiffs now assert that Joe Byrd, Principal Chief of the Cherokee Nation, in the Spring of 1997, authorized, participated in, and/or directed the illegal wiretapping activities described in the amended complaint, and further used, or attempted to use, the product of those illegal activities, in violation of federal laws and of these plaintiffs’ civil rights.
4. This motion is made in good faith and not for any dilatory purpose. No scheduling order has been entered in this case, and no trial or other dates have been set.
5. None of the current defendants will be prejudiced by this amendment, since this requested amendment is only to add parties, and not to add or otherwise amend the claims previously alleged. Further, each of the proposed new defendants is and has been aware of this action, will not be taken by surprise, and will therefore not be prejudiced.
6. The majority of the information leading to this request is information only recently made known and/or corroborated to Plaintiffs, and was not known to the Plaintiffs, or was not confirmed, at the time of filing the amended complaint.
Based upon the above and foregoing, Plaintiffs request the Court to grant them leave to amend to add as individual defendants in this action Rex Earl Starr, Jennie Battles, Lisa Finley, and Joe Byrd as reflected in the attached proposed Second Amended Complaint (Attachment “A”). Mr Starr is General Counsel for the Cherokee Nation. Ms. Battles is the Secretary-Treasurer for the Cherokee Nation. Ms. Finley was, at times relevant to this action, press officers and advisor to Joe Byrd. As stated above, Mr. Byrd is Principal Chief of the Cherokee Nation.
Motions to amend pleadings under the Federal Rules of Civil Procedure, including amendments to add parties, should be freely given, and should be denied only where amendment would be futile, where it is sought in bad faith, or where it would prejudice opposing parties. See, Fed. R. Civ. P. 15 (a); see also, Polin v. Dun & Bradstreet, Inc., 511 F.2d 875, 877 (10th Cir. 1975).
Accordingly, Plaintiffs respectfully request the Court to grant the relief requested herein, and that the Court allow the Plaintiffs to file the attached Second Amended Complaint.
(*Counsel for each of the present defendants has been contacted, but all have not responded, and therefore must be assumed to oppose this motion.)
Respectfully Submitted, By:
/S/ Charles W. Shipley, OBA No. 8182
/S/ Mark B. Jennings, OBA No. 10082
/S/ Gerald L. Hilsher, OBA No. 4218
SHIPLEY, JENNINGS & CHAMPLIN, P.C.
201 West Fifth Street,
Suite 201, Tulsa, OK 74103-4230
(918-582-1720)
ATTORNEYS FOR THE PLAINTIFFS,
MARVIN SUMMERFIELD and ROBIN MAYES
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 2nd day of July 1998, a true and correct copy of the above and foregoing document was mailed, with proper postage thereon, to:
Robert S. Lafferandre, Esq. – Pierce, Couch, Hendrickson, Basinger & Green – Oklahoma City
Lee I. Levinson, Esq. – Ronald C. Kaufman, Esq. – Tulsa, OK
Nathan H. Young III, Esq. – Tahlequah, OK
James G. Wilcoxen, Esq. – Wilcoxen, Wilcoxen & Primomo – Muskogee, OK
Frank Sullivan, Jr. P.C. – Sallisaw, OK
