Order on Plaintiff 's Motion to Add Party Defendant (JAMES & JACKSON LLC)

Transcription

1 Gergia State University Cllege f Law Reading Rm Gergia Business Curt Opinins Order n Plaintiff 's Mtin t Add Party Defendant (JAMES & JACKSON LLC Alice D. Bnner Superir Curt f Fultn Cunty Fllw this and additinal wrks at: Institutinal Repsitry Citatin Bnner, Alice D., "Order n Plaintiff's Mtin t Add Party Defendant ( JAMES & JACKSON LLC" (2007. Gergia Business Curt Opinins This Curt Order is brught t yu fr free and pen access by Reading Rm. It has been accepted fr inclusin in Gergia Business Curt Opinins by an authrized administratr f Reading Rm. Fr mre infrmatin, please cntact mbutler@gsu.edu.

2 l t \ \. ~ ( IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA COpy JAMES & JACKSON LLC, individually and derivatively n behalf f MBC, GOSPEL NETWORK, LLC., v. Plaintiffs, EVANDER HOLYFIELD, JR., WILLIE E. GARY, CECIL FIELDER, LORENZO WILLIAMS, THOMAS WEIKSNAR, CHAN ABNEY, LORI METOYER-BROWN, and RICK NEWBERGER, Defendants. Civil Actin N.: 2006CV ~ FILED IN OFFICE DEC DEPUTY ClERK SUPERIOR COURT FULTON COUIm GA ORDER ON PLAINTIFF'S MOTION TO ADD PARTY DEFENDANT This case is befre the Curt n Plaintiffs Mtin t Add Party Defendant. After having reviewed the briefs submitted n this mtin and the recrd f the case, the Curt finds as fllws: This law suit, filed in Octber, 2006, arises ut f a dispute amng frmer limited liability cmpany members. Plaintiffs allege that in breach f their fiduciary duties, Defendants apprved the cash-ut merger f MBC, the nminal plaintiff, int Prgramming Acquisitins, LLC ("Prgramming Acquisitins", which is wned by the named Defendants. Plaintiffs seek t add Prgramming Acquisitins as a defendant in this case pursuant t O.C.G.A... _._.. 9-1j-21, 'YJ:tichprvides that "[p]artiesmay be drpm:d r added by rder fth~ curt n mtin f any party... n such terms as are just." rd. The trial curt has discretin in determining whether a party shuld be added and may cnsider factrs such as prejudice t the new party, and excuse r justificatin in the delay f naming such party in the case. Aircraft Radi Sys. v. Vn Schlegell, 168 Ga. App. 109, (1983; Ellisn v. Hill, _ S.E.2d. _, 2007WL (Ga. App J:\Jamcs & Jacksn LLC\ORDER P. Mtin t Add Pmty. revised.dc

3 ( Plaintiffs cite recent discvery respnses pursuant t this Curt's Nvember 7, 2007, Order as revealing new evidence f Prgramming Acquisitins' wnership and cntrl that justifies their petitin t add it as a party. Defendants, hwever, highlight that Plaintiffs' riginal cmplaint stated that Prgramming Acquisitins was entirely wned and cntrlled by Defendants. While Plaintiffs may have learned specifics regarding fficer appintment, etc., thrugh recent discvery, such respnses revealed n new basis fr a liability thery against Prgramming Acquisitins that did nt exist at the time they filed their cmplaint. Additinally, Plaintiffs argue discvery is nt clsed in this case and thus the additin will nt prejudice Prgramming Acquisitin. Finally, Plaintiffs argue that Prgramming Acquisitins, which is wned and cntrlled by Defendants, will nt be prejudiced by their inclusin presumably because it wuld be aware fthe ptential t be brught int this lawsuit. ( Defendants cunter that discvery, which was scheduled t clse December 1, 2007, but was extended by the parties nly thrugh January 15, 2008, arguing that discvery is nearly clsed. Defendants claim that Prgramming Acquisitins will be prejudiced by its late inclusin because it was unable t participate in imprtant fact discvery ver the last furteen mnths r in the Mtin t Dismiss. mtin t add a party because the case was 2 Y, years ld, discvery was clsed, the new defendant had.-~--~~- --~-"-'---" (Ga. App Thus, the additin f a defendant wuld prejudice the party and there was n justificatin fr the delay. rd. Delay in adding a party alne, hwever, is nt sufficient grunds fr a trial curt t deny a mtin t add a party. Shiver v: Nrfld-Suthern Railway C., 220 Ga. App. 483 (1996. In Shiver, the J:Vamcs & Jacksn LLC\ORDER P. Mtin t Add Party, revised.dc

4 '\ Curt f Appeals reversed n grunds that even thugh there was substantial delay in naming the new \J patty, there was n shwing f prejudice t the added party. Id. at 484. Specifically, the Curt nted that the amended cmplaint was filed within the statute flimitatin, that the allegatins against the new party arse ut f the same facts and ccurrences alleged against the ther defendants, that the new party shared representatin with the existing defendants, and that the new party had ntice f the law suit and shuld have knwn that it might be invlved in the litigatin. Id. While there has been cnsiderable delay in seeking t add Prgramming Acquisitins and the justificatins prffered by Plaintiffs fr the delay are nt persuasive, it is difficult t determine what, if any, prejudice Prgramming Acquisitins will suffer as a result f being added at this stage. As in Shiver, the amended cmplaint will have been filed within the statute flimitatins and it arises ut f the same facts/ccurrences as the ther allegatins. Additinally, because f Defendants' cntrl/wnership f Prgramming Acquisitins, it had ntice f the suit and shuld have knwn that it might be invlved in this lawsuit. Similarly, given that Defendant Gary's law firm is representing MBC.and the individual Defendants (alng with utside cunsel, there is a substantial likelihd that Prgramming Acquisitins will share the same cunsel. In accrdance with the freging analysis, this Curt hereby GRANTS Plaintiffs' Mtin t Add riginal First Amended Cmplaint and Demand fr Jury Trial t be served upn Prgramming SO ORDERED this I '1. 'De..c. day Hls\ et'flber, 'A1lLM~W~ ALICE D. BONNER, SENIOR JUDGE Superir Curt f Fultn Cunty Atlanta Judicial Circuit J:\Jumcs & Jacksn LLC\ORDER P. Mtin t Add Party, revised.dc

5 Cpies t: Jerry A. Landers, J r. GREEN JOHNSON & LANDERS LLP Cumberland Bulevard, Suite 600 Atlanta, GA ( I / ( (fax Of COUllsel William Brewer Ill, Esq. Michael Cllins, Esq. Eric Haas, Esq. Andrew L. Pplinger, Esq. Daniel C. Skinner, Esq. C. Dunham Biles, Esq. BICKEL & BREWER 4800 Bank One Center 1717 Main Street Dallas, Texas ( / ( (Ii/x Chanthina Bryant Abney, Esq. Mary Ann Diaz, Esq. Maria P. Sperand, Esq. GARY WILLIAMS PARENTI FINNEY LEWIS MCCANUS WATSON & SPERANDO PL 221 East Oscela Street Stuart, Flrida ( ( (fax Of Cunsel: Anthny L. Cchran, Esq. Jhn K. Larkins, Esq. CHILlYIS, COCHRAN, LARKINS & BEYER, LLP 3127 Maple Drive Atlanta, Gergia ( ( fax J:Vamcs & Jacksn LLC\ORDER P. Mtin t Add Party, revised.dc