UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

Roger Wright, )

)

Plaintiff, )

)

v. ) Civil Action No.: 1:06-CV- 647-WKW

)

Pemco World Air Services, Inc. )

)

Defendant. )

DEFENDANT’S OPPOSITION TO PLAINTIFF’S

MOTION FOR LEAVE TO AMEND COMPLAINT

COMES NOW Defendant Pemco World Air Services, Inc. (“Pemco”), pursuant to the

Court’s October 30, 2007 Order, and hereby responds in opposition to Plaintiff’s Motion for 

Leave to Amend Complaint. In support of its opposition, Pemco states as follows:

1. On July 20, 2006, Plaintiff filed his Complaint comprised of five separate counts. 

In Count III of his Complaint, Plaintiff alleges a violation of the Age Discrimination in

Employment Act (“ADEA”). Specifically, Plaintiff alleges that Pemco willfully violated the 

ADEA “by intentionally and/or willfully demoting and then terminating the plaintiff because of 

his age, and then replacing him with a substantially younger individual.”

2. On October 10, 2006, the Court issued its Uniform Scheduling Order setting forth 

the schedule for discovery and the filing of motions. Section 4 of the Uniform Scheduling Order 

expressly provides that motions to amend the pleadings and to add parties shall be filed on or 

before December 29, 2006.

3. Plaintiff did not issue his first discovery requests and deposition notices until

January 23, 2007, or after the deadline for filing motions to amend the pleadings as set by the 

Uniform Scheduling Order.

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4. Plaintiff’s counsel subsequently deposed Dennis Johnson on August 7, 2007. 

Despite being made aware that Johnson was the decision-maker concerning Plaintiff’s

employment, at no point during Johnson’s deposition did Plaintiff’s counsel ask for the reason 

Johnson chose not to rehire Plaintiff in 2005. (See the Deposition of Dennis Johnson, Exhibit 4 

to Pemco’s Evidentiary Submission).

5. On September 24, 2007, Pemco submitted the Declaration of Dennis Johnson as 

part of its evidentiary submission in support of its motion for summary judgment. Johnson’s 

Declaration provides that he reasonably interpreted Plaintiff’s demand for increased severance to

mean that Plaintiff was interested in more money – not returning to work at Pemco.

6. Over a month later, on October 25, 2007, Plaintiff filed his Motion for Leave to 

Amend Complaint citing Fed. R. Civ. P. 15(a). In support of his motion, Plaintiff asserts that the 

amendment is necessary to add and to dismiss certain claims in his Complaint, including adding 

a retaliation claim under the ADEA. According to Plaintiff’s motion, the new ADEA retaliation 

claim is based solely on “recently revealed evidence” provided in Johnson’s Declaration.

7. Plaintiff’s motion should be denied for several reasons. First, Plaintiff’s motion is 

untimely according to the deadline set forth in the Uniform Scheduling Order. Plaintiff did not 

initiate discovery until January 23, 2007, or after the deadline for filing motions to amend the 

pleadings. Second, once discovery commenced, neither Johnson nor Pemco were asked why 

Plaintiff was not rehired in 2005. Any new discovery of evidence, including the reason Johnson 

chose not to contact Plaintiff for rehire, was not due to any delay on the part of Pemco. Third, as 

set forth in Pemco’s summary judgment briefs, Johnson’s actions pursuant to his reasonable 

interpretation of Plaintiff’s demand for additional severance do not and cannot constitute

evidence of retaliation based on Plaintiff’s age. As a result, an additional count based solely on 

this portion of Johnson’s Declaration would be ripe for dismissal. Lastly, Plaintiff’s Complaint 

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does not need to be amended to memorialize his voluntary dismissal of Counts IV and V of his 

Complaint. 

8. Justice does not require the leave requested and Pemco should not have to incur 

the costs associated with answering an Amended Complaint at this late stage of the case.

9. For these reasons, Plaintiff’s motion to amend should be denied.

WHEREFORE, PREMISES CONSIDERED, Defendant Pemco World Air Services, Inc. 

respectfully requests that this Court enter an Order denying Plaintiff’s Motion for Leave to 

Amend Complaint.

Respectfully submitted,

 s/ John B. Holmes, III

JEFFREY A. LEE

JOHN B. HOLMES, III

Attorneys for Defendant

OF COUNSEL:

MAYNARD, COOPER & GALE, P.C.

2400 Regions/Harbert Plaza

1901 Sixth Avenue North

Birmingham, Alabama 35203-2618

Telephone: 205.254.1000

Facsimile: 205.254.1999

Emails: jlee@maynardcooper.com

jholmes@maynardcooper.com

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CERTIFICATE OF SERVICE

I hereby certify that on November 13, 2007, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to the 

following:

Elizabeth B. Glasgow

Farmer, Price, Hornsby & Weatherford, L.L.P.

100 Adris Place (36303)

Post Office Drawer 2228

Dothan, Alabama 36302

 s/ John B. Holmes, III

. OF COUNSEL

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