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Old September 18th 09, 11:23 PM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess
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Default Polgar Objects To Filing of Amended Answers

PLAINTIFF SUSAN POLGAR’S RESPONSE TO DEFENDANTS’ BILL GOICHBERG,
RANDY BAUER, JIM BERRY, AND RANDALL HOUGH MOTION FOR LEAVE TO
FILE SECOND AMENDED ANSWER

COMES NOW, SUSAN POLGAR, Plaintiff, files this her Response to
Defendants’ Bill Goichberg, Jim Berry, Randy Bauer and Randall Hough
Motion for Leave to File Second Amended Answer, and in support would
respectfully show the Court as follows:

Procedural History

1. On August 7, 2008, Plaintiff filed her Original Petition in the 72nd
District Court of Lubbock County, Texas. On August 20, 2008, ten of the
defendants, including Goichberg, Berry, Bauer, and Hough, removed the
lawsuit to the United States District Court for the Northern District of
Texas, Lubbock Division, now present before the Court. On December 22,
2008, this Court issued a scheduling order requiring all motions to
amend pleadings be filed by 3:00 p.m. on March 16, 2009. On March 30,
2009, Defendants filed their First Amended Original Answers. On August
31, 2009, Defendants Bill Goichberg, Jim Berry, Randy Bauer, and Randall
Hough filed their Motion For Leave to File Second Amended Answer,
claiming that extensive discovery has taken place, including Plaintiff’s
deposition, that necessitated an amendment to their previously amended
answers to include an affirmative defense based on the Volunteer
Protection Act.

Grounds for Denial of Defendants’ Motion

2. Courts should not grant motions for leave to amend in the face of
“undue delay, bad faith or dilatory motive on the part of the movant. .
..undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178,
182 (1962). Defendants’ Motion for Leave, filed six months after the
deadline for motions to amend, satisfies the standards for denial of
their motion to amend identified by the Supreme Court in Foman, the case
on which Defendants rely in support of their request for leave to amend.

3. Defendants attempt to amend their answers after a long and
unexplained delay. Defendants’ proposed amended answers remain based on
facts that were available to Defendants at the time of the filing of
this lawsuit, at the time of the filing of their First Amended Answers
and at the time of the filing of this lawsuit itself. No new fact has
been discovered which now warrants pleading an affirmative defense under
the Volunteer Protection Act. “Liberality in pleading does not bestow on
a litigant the privilege of neglecting her case for a long period of
time.” Southmark Corp. V. Schulte Roth & Zabel, 88 F.3d 311, 315-16 (5th
Cir. 1996), citing Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025
(5th Cir. 1981). Accordingly, a trial court, in denying a motion for
leave to amend, may consider an unexplained delay in amending pleadings
as well as whether the facts on which the amendment is based were known
when prior pleadings were filed. Id. In Southmark Corp., the Court held
that denial of a motion for leave to amend was proper given that the
moving party had been aware of the facts giving rise to the amendment
before the suit was filed. Id.

4. Defendants in this case, like the movants in Southmark Corp., were
well aware at the time, and in fact well before the filing of this suit,
that they were volunteers for a non-profit organization. Further, the
Volunteer Protection Act has been in effect since 1997, and this is in
no way a novel defense. Given that Defendants’ neglect in asserting this
defense cannot result from anything other than their lack of diligence
and that their delay is otherwise inexplicable, Plaintiff respectfully
requests this Court deny Defendants’ Motion for Leave.

5. Defendants’ amendment, if allowed, would also be unduly and
unnecessarily prejudicial to Plaintiff. Defendants’ additional
affirmative defense, if allowed, particularly after such extensive
discovery has taken place and the deadline for amendments passed over
six months ago, would force Plaintiff to begin investigating an entirely
new affirmative defense, and one which given its frivolity, as explained
below, would be difficult and expensive to investigate. One can scarcely
imagine the absurdity of Plaintiff being forced to interview volunteers
for the USCF to determine if libel and slander are part of their day to
day responsibilities. Given the undue burden that would be placed on
Plaintiff in having to investigate this affirmative defense, Plaintiff
respectfully requests this Court deny Defendants’ Motion for Leave.

6. Finally, under the standards identified in Foman, the motion for
leave to amend should be
denied because the affirmative defense under the Volunteer Protection
Act is futile and frivolous. The Volunteer Protection Act provides that
a volunteer shall not be liable for “harm caused by an act or omission
of the volunteer on behalf of the organization or entity if... the
volunteer was acting within the scope of the volunteer’s
responsibilities.” 42 U.S.C. 14503(a). The suit before the Court
involves claims for slander, libel, business disparagement, tortious
interference with contracts and business relationships, civil
conspiracy, and breach of fiduciary duty. No such set of facts exists
where Defendants, having committed the aforementioned list of torts, was
done on behalf of an organization and within the scope of one’s
responsibilities thereto. The above is a list of intentional torts
Defendants committed outside their roles as volunteers. Defendants’
amendment is futile and frivolous.

7. Because Defendants’ Motion, if granted, would cause undue delay,
arise out of a dilatory
motive and a lack of diligence by Defendants, would subject Plaintiff to
undue prejudice, and be entirely frivolous and futile, Plaintiff
respectfully requests this Court deny Defendants’ Motion for Leave to
File Second Amended Answer.

PRAYER

8. WHEREFORE, premises considered, Plaintiff respectfully requests this
Court deny
Defendants’ Motion for Leave to File Second Amended Answer and grant
Plaintiff such other and further relief to which she may be justly
entitled, at law or in equity.

Respectfully submitted,

KILLION LAW FIRM
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