U-14901 CORVUS Motion to Amend Complaint

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U-14901 CORVUS Motion to Amend Complaint Powered By Docstoc
					                                            212 East Grand River Avenue
                                             Lansing, Michigan 48906
                                     Tel. (517) 318-3100 ▪ Fax (517) 318-3099

Haran C. Rashes
Phone: (517) 318-3019
E-Mail: hrashes@clarkhill.com
                                              August 11, 2006

Ms. Mary Jo Kunkle
Executive Secretary
Michigan Public Service Commission
6545 Mercantile Way
PO Box 30221
Lansing, MI 48909

         Re: CORVUS, Inc. v TelCove Operations, Inc.
             MPSC Case No. U-14901

Dear Ms. Kunkle:

       Enclosed for filing please find CORVUS, Incorporated’s Motion to Amend Complaint in
the above-captioned proceeding. Proof of Service upon the Parties of Record is also attached.
These pleadings have been filed electronically, in paperless format, with the Michigan Public
Service Commission’s Electronic Case Filing System.

                                              Very truly yours,

                                            CLARK HILL PLC

                                              Haran C. Rashes


cc:      Parties of Record

5305670v.1 17895/102474

                                Detroit   Birmingham     Lansing    Grand Rapids
                                     STATE OF MICHIGAN



In the matter of the Complaint of               )
CORVUS Incorporated against                     )                             Case No. U-14901
TelCove Operations, Inc.                        )                          E-FILE/PAPERLESS

                              MOTION TO AMEND COMPLAINT

        CORVUS Incorporated (“CORVUS”), by and through its attorneys, Clark Hill PLC, and

pursuant to MCR 2.118(A)(2) respectfully move the Michigan Public Service Commission

(“Commission” or “MPSC”) to grant it leave to amend its Complaint in the above captioned

matter to add the following numbered paragraph:

                 78.1     On June 4, 2004, CORVUS became aware that the
                          Defendant had misrepresented the nature of the BTNs
                          provided to CORVUS and used to identify CORVUS’
                          clients within the Defendant’s switch.

        In support of its motion to amend its Complaint CORVUS states as follows:

                          MEMORANDUM IN SUPPORT OF MOTION

        CORVUS filed its Complaint against Defendant, TelCove Operations, Inc., on May 23,

2006. As part of such Complaint CORVUS, as part of the Factual Background of the Complaint,

alleged that “Defendant assigned incorrect and duplicate Billing Telephone Numbers (“BTNs”)

to CORVUS’ clients.” Complaint ¶42.         And CORVUS alleged that “[s]uch duplicate and

incorrect BTNs resulted in CORVUS’ clients and other third parties being assigned to an

incorrect and unauthorized interexchange carriers.” Complaint ¶ 43. CORVUS further alleged,

as Court I of its Complaint, that the assignment of such incorrect and duplicate BTNs constituted

a violation of Section 505 of the Michigan Telecommunications Act (“MTA”). MCL 484.2505.

5305518v.1 17895/102474
        On August 7, 2006 the Administrative Law Judge (“ALJ”) granted Defendant’s motion

for Summary Disposition on Count I of the Complaint.1 CORVUS now seeks to its allegation of

the Defendants’ assignment of incorrect and duplicative BTNs included within CORVUS’ Count

III, as a material misrepresentation of fact, in violation of Section 502(a)(1) of the MTA. MCL

484.2502(a)(1). The ALJ set August 11, 2006 as the deadline for filing any Amendments to the

Complaint. CORVUS’ amendment relates directly to matters previously pled in the Complaint

for which the Defendant had adequate notice. Because CORVUS will not be amending its

testimony, which already discusses these issues, CORVUS’ motion to amend its Complaint is

therefore timely.


        The Michigan Court Rules provide that “a party may amend a pleading only by leave of

[Commission] or by written consent of the adverse party. Leave shall be freely given when

justice so requires.” MCR 2.118(A)(2).

        The rules pertaining to the amendment of pleadings are designed to facilitate amendment

except when prejudice to the opposing party would result. In general, amending the matter of

right rather than grace Phinney v Verbrugge, 222 Mich App 513, 542; 564 NW2d 532 (1997).

Accordingly, amendment is usually allowed before trial. Dacon v Transue, 441 Mich 315, 333;

490 NW2d 369 (1992). An amendment should not be denied unless the amendment itself would

prevent a party from receiving a fair trial. Weymers v Khera, 454 Mich 639, 659; 563 NW2d

647 (1997).       While acceptance or rejection of a proposed amendment falls within the

Commission’s discretion, the fact that leave should be freely given when justice so requires

limits that discretion. Matulewixz v Governor of Michigan, 174 Mich App 295, 303; 435 NW2d

 In amending its Complaint, CORVUS is not waiving its right to appeal the ALJ’s determination
granting Summary Disposition on Count I of the Complaint.

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785 (1989). Therefore, “a motion to amend should ordinarily be denied only for particular

reasons.” Patillo v Equitable Life Assur Soc’y, 199 Mich App 450, 456; 502 NW2d 696 (1993).

        Granting CORVUS’ motion will not delay these proceedings. CORVUS will not be

providing any additional testimony to support its amendment. The Defendants will not be

prejudiced in any way by this amendment. If granted, Defendants will have substantial time to

respond to the amended Complaint in their prefiled testimony.

        For the foregoing reasons, CORVUS Incorporated respectfully requests that the

Commission grant its motion and allow it to amend its Complaint.

                                               Respectfully Submitted,

                                                      Roderick S. Coy (P12290)
                                                      Haran C. Rashes (P54883)
                                                      CLARK HILL PLC
                                                      212 East Grand River Avenue
                                                      Lansing, Michigan 48906
                                                      (517) 318-3100
                                                      (517) 318-3099 Fax
                                                      E-Mail: rcoy@clarkhill.com

Date: August 11, 2006                          Attorneys For CORVUS Incorporated

5305518v.1 17895/102474
                             STATE OF MICHIGAN

In the matter of the Complaint of               )
CORVUS Incorporated against                     )                              Case No. U-14901
TelCove Operations, Inc.                        )                           E-FILE/PAPERLESS

                                    PROOF OF SERVICE

STATE OF MICHIGAN            )
                             )      ss.
COUNTY OF INGHAM             )

       Patricia A. Tooker, being duly sworn, deposes and says that she is an employee of Clark
Hill PLC, and that on August 11, 2006, a copy of Motion to Amend Complaint, in the above-
captioned proceeding was served upon:

Hon. Mark D. Eyster                                 Mr. William Ralls
Administrative Law Judge                            Ralls Consulting Group, PC
Michigan Public Service Commission                  2080 Birch Bluff Drive
6545 Mercantile Way                                 Okemos, MI 48864
Lansing, MI 48909                                   E-Mail: williamrralls@aol.com
E-Mail: mdeyester@michigan.gov

Mr. Brian T. Fitzgerald                             Mr. Emmanuel B. Odunlami
LeBouf, Lamb, Green & MacRae, LLP                   Attorney General - Public Service Division
99 Washington Avenue, Suite 2020                    6545 Mercantile Way, #15
Albany, NY 12210-2820                               Lansing, MI 48911
E-Mail: bfitzger@llgm.com                           E-Mail: odunlamie@michigan.gov

Service was accomplished via electronic mail.

                                                      Patricia A. Tooker

Subscribed and sworn to before me
this 11th day of August 2006.

Haran C. Rashes, Notary Public
Washtenaw County, Michigan
Acting in Ingham County, Michigan
My Commission expires: September 18, 2007

5305518v.1 17895/102474

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