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Accelecare Wound Centers, Inc. v. Bank of New York

August 11, 2009


The opinion of the court was delivered by: Denise Cote, District Judge


This Opinion concerns successive attempts by Defendants Amicus Hyperbaric Group, LLC, Amicus Medical Group, LLC, Amicus West Texas Hyperbaric L.P., Amicus Texas Hyperbaric, LP, Amicus Arizona Hyperbaric, L.P., Amicus South Texas Hyperbaric, LP, Amicus Valley Hyperbaric, LP, and John R. Hedrick (collectively, the "Amicus Parties,") to amend their counterclaim after parts of their original counterclaim were dismissed in Accelecare Wound Centers, Inc. v. Bank of New York, No. 08 Civ. 8531 (DLC), No. 08 Civ. 11314, 2009 WL 1227487, at *3 (S.D.N.Y. May 5, 2009) (the "May 5 Opinion"), and successive attacks by plaintiff Accelecare Wound Centers, Inc. ("Accelecare") on the timeliness and merit of those attempts. It accepts the first amended counterclaim for filing but denies the application for leave to file a second amended counterclaim, and then turns to whether the amended counterclaim states a claim for relief.


Plaintiff Accelecare specializes in managing hospital-based wound care centers, which often involve placing patients in hyperbaric chambers offering increased oxygen concentration to facilitate healing. Accelecare acquired the assets of the Amicus Parties used for the operation of wound care and hyperbaric medicine management service centers pursuant to an Asset Purchase Agreement dated May 31, 2007 (the "APA").

In the APA, Accelecare and the Amicus Parties agreed to place $2,841,400 of the purchase price in an escrow account with the Bank of New York ("BONY"). The APA provided that certain conditions would entitle either Accelecare or the Amicus Parties to receive a portion of the funds from the escrow account.

Of central importance to this litigation is the "Earn-Out Provision," found in Section 14 of the APA. The Earn-Out Provision provided that Accelecare would pay the Amicus Parties a bonus if certain medical centers met earnings targets. The bonus would be calculated using a multiple of the EBITDA of certain medical treatment centers and it would be offset by certain adjustments, including a $1,750,000 cash advance on the bonus that Accelecare paid the Amicus Parties. Accelecare could also offset any amount it owed to Amicus under the Earn-Out Provision against any amounts that Amicus owed Accelecare under the APA. On September 12, 2008, BONY gave Accelecare notice that it would not make any further disbursements from the escrow account to Accelecare. Accelecare filed suit in this district on September 29, 2008, naming BONY and the Amicus Parties as defendants. The litigation between Accelecare and the Amicus Parties principally concerns their competing claims to the funds in the escrow account.

Meanwhile, Amicus Hyperbaric Group LLC had filed an action against Accelecare in the Northern District of Texas on August 18, 2008, to establish its own rights to a percentage of the proceeds from the escrow account related to the performance of certain assets and in satisfaction of certain debts. Amicus Hyperbaric Group, LLC v. Accelecare Wound Centers, Inc., No. 08 Civ. 098-C (N.D. Tex. filed Aug. 19, 2008) (the "Texas Action"). Amicus has alleged that Accelecare has tried to thwart its entitlement to an Earn-Out bonus by, inter alia, deliberately undermining the performance of the medical centers whose earnings would contribute to the bonus. On December 22, 2008, the Honorable Sam Cummings of the Northern District of Texas issued an order transferring the Texas Action to this Court.

Accelecare's complaint alleges that BONY, acting on instructions from defendant John Hedrick on behalf of the Amicus Parties, refused to disburse funds from the escrow account as required by the APA. It also alleges that the Amicus Parties breached their representations and warranties by misrepresenting their financial situation and tortiously interfering with the escrow agreement, causing BONY to breach that agreement.*fn1

The Amicus Parties filed a breach-of-contract counterclaim on December 28 in which they added certain Accelecare employees as "Counter-Defendants" and employees of the Amicus Parties as "Counter-Plaintiffs." The counterclaim asserts that Accelecare breached the APA by failing to pay three debts that it had assumed under the APA and to release $900,000 from escrow after the Odessa Medical Hospital Center met certain revenue targets. The Amicus Parties further allege that they would have been entitled to greater payments from the escrow account had Accelecare not mismanaged several of Accelecare's assets by appointing inadequate managers, excluding legacy Amicus employees from management, and operating the centers poorly. The counterclaim complains that this mismanagement also lowered the value of Accelecare stock.

Accelecare moved to dismiss the counterclaim in its entirety on January 23, 2009 for failure to state a claim, and its employees named as Counter-Defendants each moved to dismiss on March 5, 2009. The May 5 Opinion granted the Counter-Defendants' motions and dismissed them from the lawsuit. Accelecare's January 23 motion was granted in part, and the Amicus Parties' counterclaim was dismissed, except for its allegations that Accelecare failed to disburse $900,000 based on the earnings of the Odessa Medical Center pursuant to the Earn-Out Provision and owes repayment of the two debts it assumed under the APA. May 5 Opinion, 2009 WL 1227487, at *6. The Order also consolidated the Texas Action and the action first filed in this Court and applied the same analysis to the pending motion to dismiss filed by Accelecare in the Texas Action.*fn2

Pursuant to Rule 16, Fed. R. Civ. P., a Pretrial Scheduling Order issued on May 4 (the "May 4 Scheduling Order").*fn3 The Order set May 15, 2009 as the deadline for amendment of the pleadings or joinder of parties. It also required that fact discovery conclude by November 13, 2009.

On May 15, Accelecare answered the counterclaim. Hours later, the Amicus Parties filed a First Amended Counterclaim ("FAC"). On June 6, Accelecare moved to dismiss the FAC because Accelecare had not sought leave to amend and because the proposed FAC was futile. The motion was fully briefed on June 26.

On July 10, nearly two months after the May 15 deadline, the Amicus Parties moved for leave to file their Second Amended Counterclaim ("SAC"). Accelecare again argued that the proposed amendment was untimely and futile. ...

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