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answers were exchanged in March 1998 and,as DMG admits,settlement discussions occurred after <br /> that.Given this sequence of events,Defendants could not have amended their Third-Party Complaint <br /> before August, 1998,nor would it have made any sense to do so. <br /> The second and third claims in Defendants' proposed Amended Third-Party Complaint <br /> complain of steep slope revegetation and rerevegetation of previously reclaimed roads. Defendants <br /> had no Idea that DMG had performed such work and planned to do such work in the future until the <br /> accounting was received in January 1998., The accounting provided only cursory information <br /> regarding this work. The March 1998 interrogatory responses provided additional information on <br /> those two areas. In addition, after January 1998, Defendants' reclamation experts analyzed the <br /> recently revealed steep slope revegetation plans. Further, it wasn't until June 1998 after the snow <br /> melted before it was possible to actually see the results of DMG's 1997 attempted steep slope <br /> revegetation. An inspection of the revegetation area revealed that a significant portion of the <br /> $72,000.00 worth of work had washed to the bottom of the slope,and may have actually caused the <br /> type of sedimentation it was meant to reduce. <br /> As Mid-Continent and its experts were able to obtain additional information on the DMG's <br /> steep slope revegetation plans,it became clear that the plans were highly questionable and probably <br /> futile. Mid-Continent and its experts met with DMG in early July 1998 to explain their concerns <br /> with the proposed steep slope revegetation. DMG's response was to continue with its bid procedure <br /> and on July 29, 1998,received two bids for the work. one in the amount of$186,894.00 and the <br /> other in the amount of$188,830.00. (See, memo from Mike Savage,Mid-Continent reclamation <br /> expert,attached as Exhibit "A"). Thus after only first learning of the steep slope revegetation project <br /> in January 1998,retaining reclamation experts to review and analyze the proposed project,reviewing <br /> the results of the 1997 revegetation attempts in June 1998 and bringing the coneems directly to <br /> DMG only to be ignored,Defendants then moved to amend their Third-Party Complaint on August <br /> 12',only about two weeks after DMG took the bids for the steep slope revegetation. <br /> Its addition,settlement negotiations between the patties took place between March and July, <br /> 1998. There is no quicker way to cause termination of settlement discussions than to file additional <br /> claims against the opposing party during the course of such discussions. Defendants engaged in <br /> those settlement discussions in good faith and although they were ultimately unsuccessful,It would <br /> have made no sense to file new claims in the midst of the settlement discussions. Defendants could <br /> not have filed the Amended Third-Party Complaint earlier and continued to negotiate in'good faith <br /> all at the same time. <br /> 11. DMG Will Suffer No Prejudice Other Than <br /> Having the Cast Decided on the Merits <br /> In its Objection,DMG lists a number of items which it claims demonstrate prejudice that it <br /> will suffer should this Court grant Defendants' Motion to Amend the Third-Party Complaint. <br /> However,all of the"prejudice"identified by DMG is merely the sort of prejudice any party suffers <br /> simply by having been sued. If the only prejudice a party suffers is that of having the case decided <br /> on the merits,the Court should reject DMG's objection and grant the Motion to Amend. J.E. <br /> 2 <br /> 20'd 70:Sti 86, Sti daS 8SS299820£:xPd <br />