IN
THE UNITED STATES COURT OF FEDERAL CLAIMS
KLAMATH
IRRIGATION DISTRICT et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 01-591 L
)
Judge Diane Gilbert Sypolt
)
Defendant. )
______________________________________)
PLAINTIFFS’
MEMORANDUM SUPPORTING THEIR MOTION
FOR LEAVE TO AMEND COMPLAINT
Plaintiffs, Klamath Irrigation District et al., move this Court for leave to amend their original Complaint, filed October 11, 2001, to add a third claim for relief for breach of contract. See RCFC 15(a). Plaintiffs have not previously sought leave to amend their complaint.
Procedural Background
This is an action to recover damages for defendant’s failure to deliver
Klamath Project water to approximately 1,400 farmers in the
ARGUMENT
I. Standard for Granting Motion to Amend Complaint
The Rules of this Court set a permissive standard for amending a Complaint.
Rule 15(a) provides that “a party may amend the party’s pleading only
by leave of court . . . and leave shall be freely given when justice so
requires.” RCFC 15(a); see also Mitsui Foods, Inc. v.
This Court has identified four factors to consider in ruling on a motion to
amend: “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [and] futility of amendment . . . .” Id;
see also Hickman v. United States,
43 Fed. Cl. 424, 439 (1999), aff’d,
232 F.3d 906 (Fed. Cir. 2000) (citing Te-Moak
Bands of Western Shoshone Indians v. United States, 948 F.2d 1258, 1260 n.4
(Fed. Cir. 1991)). Missing from this
list of factors is an evaluation of the merits of the allegations.
See Scott
Timber Co. v.
A. No Bad Faith or Undue Delay.
This amendment is timely because this case is at its incipient stage.
Indeed, at defendants’ request, all discovery has been stayed since
B. No Prejudice to Defendant
Of the four factors, this Court has noted that the U.S. Supreme Court, in interpreting Fed. R. Civ. P. 15(a), “has placed a particular emphasis on the element of prejudice to the opposing party.” Siemens Aktiengesellschaft v.United States, 26 Cl. Ct. 312, 313 (1992) (citing United States v. Hougham, 364 U.S. 310, 316 (1960) (“Rule 15 of the Federal Rules of Civil Procedure . . . was designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result.”)); see also Evans Products Co. v. West Am. Ins. Co., 736 F.2d 920 (3d Cir. 1984) (“Primary consideration in determining whether leave to amend would be granted under this rule is prejudice to the opposing party; principal test for prejudice in such situations is whether the opposing party was denied a fair opportunity to defend and to offer additional evidence on that different theory.”). See generally 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (1991) (“If no prejudice is found, then leave normally will be granted.”).
In Scott Timber Co. v.
Although defendant contends that it “clearly would be unfairly prejudiced by the allowance of the proposed amendments,” defendant has failed to identify any disadvantage or other specific harm that it will suffer as a result of plaintiff's amendments. Defendant will face no significant burden in responding to plaintiff's amended complaint, as it adds only an additional theory of recovery and is based on the same operative facts as plaintiff's breach of contract claims. That defendant will be inconvenienced by the need to brief plaintiff's additional claims is not the equivalent of prejudice.
Scott Timber Co., 44 Fed. Cl. at 182; see also Teft v. Seward, 689 F.2d 637, 369 (6th Cir. 1982 (Where “the facts as set forth in the original complaint would support [the amended] cause of action,” the amended complaint is “not so different as to cause prejudice to the defendants.”); Buder v. Merrill Lynch, Pierce, Fenner & Smith, 644 F.2d 690, 694 (8th Cir. 1981) (“Where the facts on which a previously unasserted claim is based are all known or available to all parties, there is no prejudice in allowing an amended complaint.”).
Here, defendant has been on notice of the facts supporting plaintiffs’ breach
of contract claim from the outset of this case.
Plaintiffs’ claim arises from defendant’s decision not to deliver
water to plaintiffs for irrigation of their crops, but rather to use that water
for the benefit of two endangered fish. While
plaintiffs have claimed that this non-delivery of water took or interfered with
their water rights, defendant has responded that in its opinion plaintiffs’
claim must be for breach of contract. As
counsel for defendant stated to the Court at the
In both the State adjudication and in this case, it’s our position that the Plaintiff’s rights are solely through their contracts with the Bureau of Reclamation, or even subcontracts through the water districts, which are essentially a middleman. So those contracts really define and limit their right to water.
Tr.
at 12, line 9-14 (
C. The Contract Claim is Not Futile
Although the Court does not examine the merits of the proposed amendment
in determining whether to allow it, an amendment may be disallowed on the ground
that it is clearly futile. See Mitsu Foods, Inc. v.
In a brief recently filed with the Tenth Circuit, defendant seeks to dissolve an injunction requiring release of water for the benefit of an endangered silvery minnow and southwestern willow flycatcher to the detriment of water users with contracts similar to those of the plaintiffs in this case. The government there argues that the water delivery contracts create a legal obligation for the government to deliver the water to the users, and that the Endangered Species Act (ESA) creates no legal authority to divert or retain that water for the benefit of the fish. The defendant’s brief states in part:
Contrary to the district court’s ruling, Reclamation does not have discretion under the terms of its SJC [San Juan-Chama Project] and MRG [Middle Rio Grande] Project water delivery contracts to reduce deliveries that it is required to make under the contracts and reallocate that water instead as part of an RPA [reasonable and prudent alternative] in order to avoid jeopardy to the minnow. The ESA requires agencies to consider taking actions “in which there is discretionary federal involvement or control” in order to avoid jeopardy. 50 C.F.R. 402.03, 402.02. Because Reclamation did not retain the discretion under the contracts to deliver less water if doing so would be beneficial to endangered species, reducing the amount of contract deliveries is not an “action” that can be an RPA under the ESA’s implementing regulations. Reducing contract deliveries also runs afoul of the ESA’s implementing regulations defining RPAs as actions within the agency's legal authority. 50 C.F.R. 402.02. Neither the ESA nor any other statute gives Reclamation legal authority to short contract deliveries out of storage at the SJC and MRG Projects and use Project water for instream flows for purposes of benefiting the minnow.
Brief for Federal Appellants at 16-17, Rio Grande Silvery Minnow v. John W. Keys, III, Nos. 02-2254, 02-2255, 02-2267, 02-2295, 02-2304 (Sept. 23, 2002).
CONCLUSION
Accordingly, plaintiffs request leave to file the Amended Complaint attached hereto as Exhibit A. Plaintiffs’ further request oral argument on their motion for leave to amend complaint.
Respectfully submitted,
____________________________
Roger J. Marzulla
Nancie G. Marzulla
MARZULLA & MARZULLA
202-822-6760
202-822-6774 (fax)
Counsel for Plaintiffs
Dated: January___, 2003