Jf 5. A copy of the Counterclaim, Third-Party Complaint and Comparative Fault
wf
Affirmative Defense are attached to this Motion.
WHEREFORE, Defendant, Atlas Excavating, Inc., respectfully requests the court to file

its Counterclaim, Third-Party Complaint and Comparative Fault Affirmative Defense, instanter.

ATLAS EXCAVATING, INC.

By: Jand Ye
@ne of Its —

James K. Borcia |
David O. Yuen

Tressler, Soderstrom, Maloney & Priess

233 South Wacker Drive

Sears Tower, 22TM Floor

Chicago, IL 60606

(312)627-4000



DOY,Line/233871 5-144-51

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS a

EASTERN DIVISION
MCI WORLDCOM NETWORK SERVICES, )
INC. )
, )
Plaintiff, ) No. 02 C 4394
)
v. ) Judge Moran
)
ATLAS EXCAVATING, INC., ) Magistrate Judge Brown
)
Defendant, }
; NOTICE OF MOTION Ce
TO: John P. Morrison James J. Proszek
Robert P. Brown Kimberly R. Beidler OV 2 8B 2003
Bell Boyd & Lloyd LLC Hall Estill Hardwick Gable-Golden °
Three First National Plaza & Nelson, P.C.
70 West Madison Street, Suite 3300 320 South Boston Avenue, Suite 400
Chicago, IL 60602 Tulsa, OK 74103-3708 po

Hox dns

PLEASE TAKE NOTICE that on November 25, 2003 at 9:00 a.m., or as soon thereafter
as counsel may be heard, I shall appear before the Honorable James P. Moran or any judge
sitting in his stead, in the courtroom usually occupied by him in Room 1843 of the Federal
Building and shall then and there present Defendants Motion for Leave to File its
Counteclaim, Third Amended Complaint and Comparative Fault Affirmative Defense, a
copy of which is attached hereto and hereby served upon you.

ATLAS EXCAVATING, INC.

By: Gd y

One of Its Adfgmeys

James K. Borcia, Esq.

David O. Yuen, Esq.

Tressler, Soderstrom, Maloney & Priess
233 South Wacker Drive, 22" Floor
Chicago, IL 60606

(312) 627-4000


“ PROOF OF SERVICE
being first duly sworn on oath, deposes and says thi

at he served copies

The undersigned,
of the above documents Upon the attorneys shown above via facsimile on the 20" day of
November, 2003.
Subscribed and Swom to before me
this 20" day of November, 2003.

“OFFICIAL SEAL”

aneor ? BiLL TOUOPOULOS
nw ISSION EXPIRES 04/19/06

vyvyrevysy



DOY/233860 5-144-51

“ UNITED STATES DISTRICT COURT 2

EASTERN DIVISION
MCI WORLDCOM NETWORK SERVICES, )
INC. )
)
Plaintiff/Counter-Defendant, ) No. 02 C 4394
)
v. ) Judge Moran .
prown BOE!
ATLAS EXCAVATING, INC., ) Magistrate Judge Brown ~ ge i ;
) 6 2003 ri
Defendant/Counter-Plaintiff. ) NOV 2 6 a

MOTION FOR LEAVE TO FILE COUNTERCLAIM, THIRD AMENDED COMPLAINT
AND COMPARTIVE FAULT AFFIRMATIVE DEFENSE

Defendants, Atlas Excavating, Inc. (“Atlas”), by and through its attomeys, Tressler,
Soderstrom, Maloney & Priess, hereby moves this Court for leave to file its Counterclaim, Third
Party Complaint and Comparative Fault Affirmative Defense, instanter, and in support thereof
states as follows:

1. Evidence has been presented through various depositions that AT&T Corporation.
(“AT&T”) located and marked the utility lines that are the subject of Plaintiff's Complaint in this

lawsuit. These depositions have also revealed that the location of these lines was incorrectly

marked.

2. In its Complaint, Plaintiff alleges that it marked the location of the utility lines.

3. Atlas’ main defense to the Complaint is that the location of the lines was not
marked properly.

4. The granting of this Motion wil! prejudice no party, as discovery is ongoing and

no trial date has been set.

D