Defendants' Brief in Support of Motion to Amend Answer with Certificate of Service

    BE »e 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

) 
) 
) 
) 
) 
) 

JAMES B. HUNT, JR., in his official ) 

capacity as Governor of the State of North ) 

Carolina, et al., ) DEFENDANTS’ BRIEF 

) IN SUPPORT OF MOTION 

) TO AMEND ANSWER 

) 
) 
) 
) 
) 
) 

Defendants, 

and 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

Defendants have moved the Court pursuant to Rule 15(a) of the Federal Rules of Civil 

Procedure for leave to amend their Answer to the Amended Complaint to add an additional defense 

that plaintiffs have failed to state a claim for relief on the grounds that their claims are barred by the 

doctrine of issue preclusion. In support of this motion, defendants show the following. 

Pursuant to Rule 15(a), leave to amend a party’s pleadings shall be freely given. It is well 

settled that in the absence of any apparent or declared reason, such as undue delay, bad faith or 

dilatory motive on the part of the movant, or undue prejudice to the opposing party by virtue of the 

allowance of the amendment, “the leave sought should, as the rules require, be ‘freely given.” 

Fomanyv. Davis, 371 U.S. 178, 182,83 S. Ct. 227,230,9 L. Ed. 2d 222, 226 (1962). In the unusual 

 



  

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circumstances of this case, where a stay of proceedings has been in effect during the pendency of an 

appeal to the United States Supreme Court, there has been no undue delay by the defendants in 

amending their answer. In addition, there can be no prejudice to the opposing party because 

discovery has yet to commence and the process of bringing this action to trial has just begun. 

Furthermore, defendants contend that the defense of claim preclusion is subsumed within their third 

affirmative defense of failure to state a claim upon which relief can be granted, and, therefore, need 

not be stated as a separate affirmative defense. However, for purpose of clarity and to assure that 

plaintiffs are put on notice that defendants intend to continue to pursue this issue,' defendants seek 

to amend their answer to separately state the bar of claim preclusion as a separate defense. 

WHEREFORE, for the reasons stated above, defendants respectfullyrequest that their motion 

to amend their answer to include a ninth defense of claim preclusion be allowed. 
; a 

This the JJ day of 4 opr?” , 1999. 
  

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

Fs 3 hdl 
Tiare B. Smiley 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

  

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

  

| Plaintiffs are already on notice regarding this issue, which was argued by defendants in the 
Jurisdictional Statement filed in the United States Supreme Court. In addition, the defense has been 
specifically raised by the defendant-intervenors. 

 



  

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CERTIFICATE OF SERVICE 

This is to certify that I have this day served a copy of the foregoing Defendants’ Brief in 

Support of Motion to Amend Answer in the above captioned case upon all parties by depositing 

these documents in the United States mail, first class mail, postage prepaid addressed as follows: 

Robinson O. Everett 

Suite 300 First Union Natl. Bank Bldg. 

301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

ATTORNEY FOR PLAINTIFFS 

Adam Stein 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, PA. 

Suite 2 

312 W. Franklin Street 

Chapel Hill, NC 27516 

Todd Cox 

NAACP Legal Defense & Educational Fund, Inc. 
1444 | Street NW 

Washington, DC 20005 

ATTORNEYS FOR DEFENDANT-INTERVENORS 

  

  

1are B. Smiley 

Special Deputy Attorney General 

This the 2, of drut 1999. 

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