Berke, et al. v. Presstek, et al.

• Court: District Court, D. New Hampshire
• Decided: February 20, 1998
• Docket: CV-96-347-M
• Status: Published

Opinion

Berke, et al. v. Presstek, et al. CV-96-347-M 02/20/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bill Berke, et al.

v. Civil No. 96-347-M MDL No. 114 0 Presstek, Inc., et al.

O R D E R

Plaintiffs have dismissed their claims against many of the

defendants, and have filed a motion for leave to amend their

complaint. The remaining defendants acknowledge the likelihood

that plaintiffs would be permitted to amend, but challenge some

of the new allegations and documents appended to the amended

complaint. For the reasons that follow, the court grants

plaintiffs' motion to amend, and, therefore, denies the currently

pending dispositive motions.

I. Motion for Leave to Amend Complaint

As provided in Federal Rule of Civil Procedure 1 5 (a), "leave

to amend shall be freely given when justice so reguires." Absent

an adeguate reason for denial such as bad faith, prejudice to

defendants, undue delay, or futility, the court will grant a

plaintiff's reguest to amendment the complaint. Classman v.

Computervision Corp., 90 F.3d 617, 622 (1st Cir. 1996) .

Defendants have not raised grounds that would suggest that

amendment at this stage should not be allowed. Instead,

defendants' objection focuses on the propriety of certain

allegations in the amended complaint that refer to the Security and Exchange Commission consent decrees with the defendants.

Defendants' objections should be raised in a motion to strike,

which would allow plaintiffs to respond appropriately.

Therefore, plaintiffs' motion to amend (document no. 107) is

granted.

II. Pending Dispositive Motions

Defendants, including those that have been dismissed, have

dispositive motions pending aimed at the prior complaint.

Motions filed by defendants that have been dismissed from this

suit, Donald Chapman, EDO Seidman LLP, Everen Securities, the

Oxley defendants, and the Cabot Money Management defendants

(including Robert Lutts), (documents no. 60, 61, 65, 66, and 92)

are denied as moot.

The remaining defendants have filed a memorandum explaining

the impact of the amendments on their pending motions and reguest

an opportunity to supplement their current motions. Presstek's

motion to dismiss (document no. 63) and motion for summary

judgment on accounting allegations (document no. 62) and the

Cabot Heritage (Newsletter) defendants' motion to dismiss

(document no. 59) are also denied as moot in light of the second

amended consolidated class action complaint, but without

prejudice to refile appropriate dispositive motions in response

to the amended complaint.

Defendants filed a joint motion to dismiss (document no. 88)

the Silverman complaint, which is similar to the Berke

2 plaintiffs' previous complaint. The defendants' motion

incorporates arguments from the now moot motions to dismiss and

also raises a statute of limitations issue. The court granted

plaintiff's assented-to motion reguesting an extension of time

for response to allow her thirty days from the date of the

court's resolution of defendants' motions to dismiss the Berke

plaintiffs' complaint to respond. Although this order resolves

the pending motions to dismiss the Berke plaintiffs' complaint,

the motions have been denied as moot. Therefore, the purpose of

the extension, to conserve resources by considering the ruling on

the other motions before plaintiff's response here, cannot be

served as things now stand. In addition, plaintiff Silverman has

not moved to amend her complaint, but may intend to do so in

light of the Berke plaintiffs' amendment.

Accordingly, in order to keep the anticipated Berke

dismissal motions and the Silverman motion on a parallel

administrative track, defendants' motion to dismiss (document no.

88) is denied without prejudice to refile. Counsel are

encouraged to discuss the matter to determine whether, as the

parties decided previously, their interests and resources would

be better served by waiting for resolution of any motions to

dismiss that may be filed in response to the Berke plaintiffs'

amended complaint.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge

February 20, 1998

cc: Edward F. Haber, Esq. George R. Moore, Esq. Patricia I. Avery, Esq. Michael E. Schoeman, Esq. Kevin E. Sharkey, Esq. Paul D. Young, Esq. Mark L. Mallory, Esq. Patricia D. Howard, Esq. Solomon Cera, Esq. Barrie L. Brejcha, Esq. Ronald P. Kane, Esq. Kenneth A. Cossingham, Esq. Thomas J. Pappas, Esq.