Reply at 2. Accordingly, in light of the discussion regarding defendants'
motion for reconsideration, such defenses may be applicable during trial,
pending the determination of the materiality of the breach of the HCP
Agreement. See supra at 16-18 (election theory not appropriate in
motion for reconsideration because issue of materiality needs to be
developed ""either at trial or on a renewed motion for summary judgment,'
Wechsler I, 1999 WL 397751, at *6-*7, and not upon a Rule 6.3 motion for
For the foregoing reasons, both plaintiffs motion and defendants'
motions are denied in part and granted in part.
*fn2 It has been brought to the Court's attention in subsequent
pleadings that by Order of United States Bankruptcy Judge Prudence Carter
Beatty dated August 5, 1999, the Towers Financial Administrative Trust
was terminated and the Trust's claim against Hunt Health was assigned to
Raymond H. Wechsler in his personal capacity. See Defendants' Memorandum
of Law in Opposition to Plaintiff's Renewed Motion for Partial Summary
Judgment, Ex. A, Order dated 8/5/99; Ex. B (Letter from Raymond Wechsler
to Administrative Trust).
*fn3 During all relevant periods, P&G was owned by Gail Gaines and
Patricia McDonough. MHTJ was formed by John L. Givens III, Anand
Mehendale, Rex Thomas and Thomas Havard.
*fn4 Although the Letter Agreement is not signed by a representative of
Towers, plaintiff does not challenge its authenticity or validity. See
Def. 56.1 Response, ¶¶ 18, 48.
*fn5 The governing bodies of Hunt Health and Esperanza are identical,
except that Thomas is not a member of Hunt Health's governing body.
*fn6 As indicated previously, by Order of United States Bankruptcy Judge
Prudence Carter Beatty dated August 5, 1999, the Towers Financial
Administrative Trust was terminated and the Trust's claim against Hunt
Health was assigned to Raymond H. Wechsler in his personal capacity. See
supra note 2.
*fn7 The discovery in this case has a long and tortured history. From
1996 through early 1998, there were numerous requests for extension of
discovery deadlines and several stipulations by the parties to permit
further discovery beyond lapsed deadlines. The parties continued fact
discovery through the Spring of 1998, when they jointly advised the Court
of their request to further extend the cut-off date for the filing of
dispositive motions from March 31, 1999 to May 30, 1999. This extension
was granted by Magistrate Judge Pitman with the firm admonishment of: NO
FURTHER EXTENSIONS." (emphasis in original). See Plaintiffs Reply
Memorandum of Law in Support of his Motion to Strike and Dismiss and his
Memorandum of Law in Opposition to Defendants' Motion for Leave to Amend
Answer Nunc Pro Tune and to Conduct Further Discovery (hereinafter "Pl's
Reply"), at 4; Ex. A to the Affidavit of Daniel J. Kelly, Esq. dated
November 11, 1999 (hereinafter "Kelly Aff.").
*fn8 Both plaintiff and defendants tacitly assert various allegations of
"bad faith." For example, plaintiff argues "the delay and prejudice are
so great as to raise serious questions as [to] the motive of defendants."
Pl's Mem. Strike at 7. Plaintiff goes on to state "[d]efendants' latest
machinations suggest rather a switch in strategy following
dissatisfaction with the Court's rulings on the dispositive motions."
Pl's Reply at 12. Defendants respond by submitting that this Court should
question the plaintiffs failure to bring the Brater/Rosoff trial
testimony to the attention of defendants and the Court. See Defs' Opp.
and Amend at 17. Further, defendants assert the plaintiffs lack of notice
for the new defenses is due to his "mismanagement (if not concealment) of
crucial relevant evidence." Defs Reply at 4.
*fn9 The Court need not address plaintiffs "futility" argument because
the Court has otherwise denied leave to amend based on undue delay and
prejudice. See Pl's Reply at 12.
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