MOTION TO STRIKE PLAINTIFFS

IN THE SUPERIOR COURT OF THE STATE OF XXX

IN AND FOR XXX COUNTY

COMES NOW,XXX, pro se, and files this Response to Defendants All About Speech, LLC, A Better Learning Environment, LLC, XXX, individually, and XXX, (collectively, “Defendants”)’s motion to strike Plaintiffs’ Motion for leave to file Second amended complaint. In response thereof, Plaintiff states as follows:

                        i.         Plaintiffs’ Motion is not Procedurally Deficient

The standard for determining whether leave to amend should be granted was set forth in XXX, as follows:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the party 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, futility of the amendment, etc. — the leave sought should, as the rules require, be “freely given.” (Emphasis added)

According to XXX (a)(4), a party moving for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion. Defendants argue that Plaintiff failed to attach an Exhibit showing the Amendments made to the Complaint. On the contrary, Plaintiff attached duly attached a copy of the Second Amended Complaint, which contained the amendments to wit, substituted Plaintiff’s name (XXX), and additional Defendant Social Services Contractors Indemnity Pool. Besides, Plaintiff’s Motion argued said specific proposed changes to the Complaint, which therefore makes the Defendants sufficiently notified of the amendments.

Next, Defendants argue that Plaintiff failed to comply with ARCP 7.1(a). On the contrary, Plaintiff filed a Memorandum of Points and Authorities in Support of the Motion for Leave. The Memorandum contained express intentions of Plaintiffs to substitute XXX as Plaintiff, and join Social Services Contractors Indemnity Pool as Defendant. The fact that Plaintiff titled the respective arguments in the Memorandum as, for instance, “Motion to Join”, is immaterial. What matters is that Plaintiff duly and/or sufficiently notified Defendants that she was amending the Complaint by making said proposed changes.

Plaintiff asserts that this Honorable Court should disregard Defendants’ arguments, and instead freely and/or liberally grant leave to file the Second Amended Complaint.

                      ii.         Defendants’ argument regarding the legal representation of Plaintiff XXX Investments, LLC, is moot

Defendants argue that XXX Investments, LLC attempts to litigate the matter pro se. Contrary to Defendants’ averments, Plaintiff seeks to remove XXX Investments, LLC from the case since it was improperly joined to the case as Plaintiff. The need to replace XXX Investments with Christopher is necessitated by the fact that XXX is identified as a Counter Defendant in the Answer and Counterclaim filed by AAS and ABLE, on the basis that he is husband to XXX and at all relevant times, both were acting for and on behalf of their marital community. The foregoing clearly shows why it is necessary to have the correct party included as Plaintiff.

                     iii.         It is in the interest of justice to grant Plaintiffs leave to file amended complaint

According to XXX (a)(2), leave to amend a pleading “must be freely given when justice requires.” Further, the Arizona Supreme Court has stated that amendments will be liberally allowed. See XXX. Denial of leave to amend is generally considered an abuse of discretion where the amendment merely seeks to add a new legal theory supported by factual issues already in the case. See, XXX.

The foregoing jurisprudence shows that it is the policy of Courts in XXX to liberally grant leave to amend the Complaint. In the instant case, Plaintiffs’ assert that it is in the interest of justice to file the second amended complaint. Notably, the second amended complaint seeks to introduce a new defendant, the Social Services Contractors Indemnity Pool (“the Pool”). It is pertinent to include the Pool as Defendant so that Plaintiffs get a declaratory judgment regarding Pool’s obligation to cover Ms. Aliotta to defend the Counterclaim filed by AAS. Next, Plaintiff seeks to substitute XXX Investments, LLC for XXX. It is pertinent to replace the Plaintiff because XXX is identified as a Counter Defendant in the Answer and Counterclaim filed by AAS and ABLE, on the basis that he is husband to XXX and at all relevant times, both were acting for and on behalf of their marital community. It follows; it is in the interest of justice to grant Plaintiff’s Motion for Leave to File the Second Amended Complaint.