090079.71121/21084661v1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

SUNGARD RECOVERY SERVICES L.P.: 

 : 

 Plaintiff/Counterclaim Defendant, : 

 : Civil Action 

 v. : No. 02-4444 (PBT) 

 : 

COMCAR INDUSTRIES, INC., : 

 : 

 Defendant/Counterclaim Plaintiff. : 

 : 

SUNGARD RECOVERY SERVICES LP’S MOTION TO FILE 

MOTION TO DISMISS COUNTS III, IV AND V OF COMCAR 

INDUSTRIES, INC.’S AMENDED COUNTERCLAIMS OUT OF TIME

SunGard Recovery Services LP (“SunGard”), by and through undersigned 

counsel, respectfully moves this Court for entry of an Order permitting SunGard to 

file a Motion to Dismiss Counts III, IV and V of Comcar Industries, Inc.’s 

(“Comcar”) amended counterclaims out of time, and in support thereof, avers as 

follows: 

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1. On September 24, 2002, SunGard filed a Motion to Dismiss Comcar’s 

original counterclaims. 

2. On October 24, 2002, Comcar filed an Answer, Affirmative Defenses 

and Amended Counterclaims. 

3. Through counsel’s inadvertent miscalculation of time due for a response 

to the amended pleading, SunGard filed and served a Motion to Dismiss Counts III, 

IV and V of Comcar’s Amended Counterclaims on November 13, 2002. 

4. The proper response date was November 7, 2002. See Fed. R. Civ. P. 

15(a) (“A party shall plead in response to an amended pleading within the time 

remaining for response to the original pleading or within 10 days after service of the 

amended pleading, whichever period may be the longer, unless the court otherwise 

orders”). 

5. On November 14, 2002, counsel for Comcar contacted counsel for 

SunGard and requested that SunGard withdraw the untimely motion to dismiss. 

6. Comcar is not unfairly prejudiced by the error of several days in 

SunGard’s filing of the motion to dismiss the amended counterclaims. 

7. To the contrary, SunGard’s filing of a motion to dismiss the amended 

counterclaims set forth a strong basis for the Court to narrow the legal issues and 

claims in this case at an early stage of the proceedings. SunGard would be greatly 

prejudiced if the Motion to Dismiss was not treated as properly filed. 

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8. Comcar should be ordered to respond to the Motion to Dismiss within 

twenty days from the date that the Court enters its Order. 

 WHEREFORE, SunGard Recovery Services LP respectfully requests that the 

Court grant this Motion and permit SunGard to file its previously filed Motion to 

Dismiss out of time. 

Dated: November 15, 2002 

BLANK ROME COMISKY & McCAULEY LLP 

/s/ James T. Smith 

 

James T. Smith, Esquire 

Michael E. Adler, Esquire 

One Logan Square 

Philadelphia, PA 19103 

Telephone: (215) 569-5500 

Facsimile: (215) 569-5555 

Attorneys for Plaintiff SunGard Recovery Services 

LP, formerly known as SunGard Recovery Services 

Inc. 

Case 2:02-cv-04444-PBT Document 10 Filed 11/15/2002 Page 3 of 10
090079.71121/21084661v1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

SUNGARD RECOVERY SERVICES L.P. : 

 : 

 Plaintiff/Counterclaim Defendant, : 

 : Civil Action (PBT) 

 v. : No. 02-4444 

 : 

COMCAR INDUSTRIES, INC., : 

 : 

 Defendant/Counterclaim Plaintiff. : 

 : 

 : 

ORDER

AND NOW, this _____ day of ______________ , 2002, upon consideration 

of SunGard Recovery Services LP’s Motion to File Motion to Dismiss Counts III, IV 

and V of the Comcar Industries, Inc.’s Amended Counterclaims Out of Time, and 

any response thereto, it is hereby ORDERED and DECREED that the Motion is 

GRANTED. SunGard’s Motion to Dismiss shall be deemed filed as if timely, and 

Comcar Industries, Inc. shall file a response accordingly. 

 BY THE COURT: 

_____________________________ 

 J. 

Case 2:02-cv-04444-PBT Document 10 Filed 11/15/2002 Page 4 of 10
090079.71121/21084661v1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 

SUNGARD RECOVERY SERVICES L.P.: 

 : 

 Plaintiff/Counterclaim Defendant, : 

 : Civil Action (PBT) 

 v. : No. 02-4444 

 : 

COMCAR INDUSTRIES, INC., : 

 : 

 Defendant/Counterclaim Plaintiff. : 

 : 

 : 

SUNGARD RECOVERY SERVICES LP’S MEMORANDUM OF LAW IN 

SUPPORT OF ITS MOTION TO FILE MOTION TO DISMISS 

COUNTS III, V AND V OF COMCAR INDUSTRIES, INC.’S 

AMENDED COUNTERCLAIMS OUT OF TIME 

Plaintiff/Counterclaim-Defendant SunGard Recovery Services LP 

(“SunGard”), by and through its undersigned counsel, respectfully submits this 

Memorandum of Law in Support of its Motion to File Motion to Dismiss Counts III, 

IV and V of the Amended Counterclaims of Defendant/Counterclaim Plaintiff 

Comcar Industries, Inc. (“Comcar”) out of time. 

I. PRELIMINARY STATEMENT

On September 24, 2002, SunGard filed a Motion to Dismiss Comcar’s original 

counterclaims. On October 24, 2002, Comcar filed an Answer, Affirmative Defenses 

and Amended Counterclaims. 

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Through counsel’s inadvertent miscalculation of time due for a response to the 

amended pleading, SunGard filed a Motion to Dismiss Counts III, IV and V of the 

Comcar Industries, Inc.’s Amended Counterclaims on November 13, 2002. The 

proper response date was November 7, 2002. See Fed. R. Civ. P. 15(a). 

On November 14, 2002, counsel for Comcar contacted counsel for SunGard 

and requested that SunGard withdraw the untimely motion to dismiss. Because 

Comcar would not be unfairly prejudiced by the motion to dismiss, and SunGard 

would be greatly prejudiced, the Court should permit SunGard to file the motion to 

dismiss out of time. 

II. ARGUMENT

Federal Rule of Civil Procedure 15(a) provides, in relevant part: 

A party shall plead in response to an amended pleading within the 

time remaining for response to the original pleading or within 10 

days after service of the amended pleading, whichever period may 

be the longer, unless the court otherwise orders. 

See Fed. R. Civ. P. 15(a). The Rules of Civil Procedure are to be “construed and 

administered to secure the just, speedy, and inexpensive determination of every 

action.” Fed. R. Civ. P. 1. 

In circumstances such as this, where there is no showing of prejudice, courts 

may permit the filing of pleadings out of time. For example, in Resolution Trust 

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Corp. v. Baker, 1994 U.S. Dist. LEXIS 16218, *25 (E.D. Pa. Nov. 14, 1994), the 

plaintiff argued that the defendant had failed to timely submit his answer, and moved 

for a dismissal of his affirmative defenses and counterclaims under Rule 12(a), 

claiming that the defendant had 10 days from the date of the entry of the Court's 

order of December 2, 1993 to file his answer but did not respond until January 27, 

1994. The Court denied the plaintiff’s motion finding that “while defendant Salvatore 

Certo filed his answer in an untimely fashion, the RTC has failed to show how it was 

prejudiced by a fifty-five day delay at this nascent stage of the litigation.” Id. at *25. 

For similar reasons and where there is no prejudice, courts have permitted untimely 

amended pleadings under Rule 15: 

in keeping with the liberal amendment policies of Rule 15(a) as 

well as the general policy of minimizing needless formalities, a court may 

treat an untimely amended pleading served without leave of court 

as properly introduced if the court determines that leave to amend 

would have been granted had it been sought and if it appears that the 

parties will not be prejudiced by permitting the amendment. 

Gardner v. Authorized Distrib. Network, Inc., 1992 U.S. Dist. LEXIS 14409 *5 

(E.D. Pa. Sept. 21, 1992) (emphasis added) (citing 6 Wright, Miller & Kane, Federal 

Practice & Procedure 2d, § 1484 (1990)). 

Likewise, Comcar is not unfairly prejudiced by the error of several days in 

SunGard’s filing of the motion to dismiss the amended counterclaims. To the 

contrary, SunGard’s filing of a motion to dismiss the amended counterclaims set forth 

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a strong basis for the Court to narrow the legal issues and claims in this case at an 

early stage of the proceedings. In fact, one of SunGard’s arguments in the Motion to 

Dismiss, among others raised, is that Comcar’s counterclaims are filed untimely as 

beyond the statute of limitations. In a situation such as this, SunGard would be 

greatly prejudiced if the Motion to Dismiss was not treated as properly filed. 

Accordingly, Comcar should be ordered to respond to the Motion to Dismiss 

within twenty days from the date that the Court enters its Order. 

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III. CONCLUSION

 For the foregoing reasons, SunGard respectfully requests that this Court enter 

an Order permitting SunGard’s Motion to Dismiss, which was inadvertently filed out 

of time. 

Dated: November 15, 2002 

BLANK ROME COMISKY & McCAULEY LLP 

/s/ James T. Smith 

 

James T. Smith, Esquire 

Michael E. Adler, Esquire 

One Logan Square 

Philadelphia, PA 19103 

Telephone: (215) 569-5500 

Facsimile: (215) 569-5555 

Attorneys for Plaintiff SunGard Recovery Services 

LP, formerly known as SunGard Recovery Services 

Inc. 

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CERTIFICATE OF SERVICE

I, Michael E. Adler, hereby certify that on November 15, 2002 I caused a true 

and accurate copies of the foregoing Motion to File Motion to Dismiss Counts III, IV 

and V of the Amended Counterclaims Out of Time, with attached Memorandum of 

Law and proposed Form of Order, to be delivered by hand delivery, addressed as 

follows: 

Susan L. Bucknum, Esquire 

CONRAD O’BRIEN GELLMAN & ROHN, P.C. 

1515 Market Street, 16th Floor 

Philadelphia, PA 19102 

 

 

 /s/ Michael E. Adler 

 

 Michael E. Adler 

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