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Case 8:13-cv-01900-JSM-EAJ

Document 13

Filed 11/22/13

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

CASE NO.: 8:13-CV-01900-T-30EAJ

HEWLETT-PACKARD FINANCIAL SERVICES COMPANY, a Delaware corporation,

vs.

Plaintiff,

BREVARD COUNTY CLERI<. OF THE CIRCUIT COURT, a political subdivision of the State of Florida,

Defendants.

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PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Plaintiff, Hewlett-Packard Financial Services Company ("HPFS"), through its

undersigned attorneys and pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, and

this Court's Case Management Order timely moves for leave to file an Amended Complaint, and

in support, states:

BACKGROUND

On October 23, 2012, HPFS loaned Defendant, Brevard County Clerk of the Circuit

Court ("Clerk") $6,100,000, reflected by execution of a promissory note ("Note"). The Clerk

defaulted tmder the Note when it failed to make monthly installment payments beginning in

November 2012 and continuing thereafter. As a result, HPFS filed a one count Complaint on

July 23, 2013 for an Action on the Note against the Clerk.

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The Clerk answered on August 23, 2013 and asserted twelve affinnative defenses ("Answer"). The Clerk raised very material and unusual allegations in the Answer which necessitates HPFS's filing of an Amended Complaint against additional parties. On September 27, 2013, the Court entered a Case Management Scheduling Order [ECF No. 12] and imposed November 22, 2013 as the deadline for HPFS to file an amended complaint and to add third-parties to this action. The Clerk's Answer and Affinnative Defenses and other related legal proceedings created the circumstance which necessitated HPFS filing an Amended Complaint, and which pleads alternate theories of relief against new third parties to be added into this case as defendants. HPFS seeks leave from the Court to file an Amended Complaint to include four new claims against additional parties. The proposed Amended Complaint is attached hereto as Exhibit I. New counts II, III, and IV for professional malpractice, negligent misrepresentation, and breach of fiduciary duty have been asserted against Caruso, Swerbilow & Camerata, P .A. ("CSC"), a law firm. As a condition precedent to HPFS closing the transaction with the Clerk, CSC was retained to and provided a legal opinion letter verifying that the Clerk had the power and authority to enter into the Note and that the relevant closing documents constituted a legal, valid and binding obligation of the Clerk. Among other things, the Clerk's Answer denies that the Clerk had authority to enter into the transaction. Therefore, based on allegations raised in the Answer, HPFS seeks leave to add claims against CSC for malpractice, breach of fiduciary duty, and negligent misrepresentation. New Count V is for fraudulent inducement against BlueGEM, LLC ("BlueGEM") and Rose Harr ("I-Iarr"). The Answer and other public filings, including the issuance of an indictment related to the subject transaction against BlueGEM and Harr, imply that Blue Gem

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and Harr misrepresented and failed to disclose material facts to HPFS, and also alleged bribery

by BlueGEM and Harr, involving the prior Clerk. Therefore, HPFS seeks to add a count against

BlueGEM and Harr for fraudulently inducing HPFS to enter into the transaction with the Clerk.

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that the "court should

freely give leave when justice so requires." Under the law of the Eleventh Circuit, leave to

amend should be freely granted when necessary in the interest of justice. See Burger King Corp.

v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999); Espeyv. Wainwright, 734 F.2d 748,750 (11th

Cir. 1984) (recognizing "unless there is substantial reason to deny leave to amend, the discretion

of the district court is not broad enough to permit denial"). Here, the interests of justice will be

served by allowing HPFS to file the Amended Complaint. HPFS has not abused its privilege to

amend, as this is the first time HPFS is seeking leave to amend. Moreover, this filing is timely

and within the requirements of the Case Management Scheduling Order. Accordingly, HPFS

requests leave to file the Amended Complaint attached hereto as Exhibit 1.

WHEREFORE, HPFS respectfully requests that this Court enter an Order granting it

leave to file the Amended Complaint in the form attached hereto as Exhibit 1 and granting such

other relief as deemed just and proper.

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Respectfully submitted,

BERGER SINGERMAN LLP Attomeys for Plaintiff 350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Direct: (954) 712-5138

By: Charles H Lichtman, Esq. Charles H. Lichtman, Esq. Florida Bar No. 501050 clichtman@bergersingerman.com Ashley Dillman Bruce, Esq. Florida Bar No. 055718 adbruce@bergersingerman.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 22nd day of November, 2013, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached service list in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or

parties who are not authorized to receive electronically filed documents.

By: Is/ Charles H Lichtman

Charles H. Lichtman, Esq.

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SERVICE LIST

Alec D. Russell, Esq. Adam M. Bird, Esq. Gray Robinson, P.A. 1795 W. NASA Blvd. Melbourne, FL 32901 Tel: (321) 727-8100 Fax: (321) 984-4122 Alec.russell@gray-robinson.com Adam.bird@gray-robinson.com Tonimarie.dalessandro@gray-robinson.com

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