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CAUSE NO. 2017-43835
SAM ALAM, § IN THE DISTRICT COURT OF
PLAINTIFF, §
§
V. §
§
ANDREW GOMES, MD, MAHENDRA §
AGRAHARKAR, MD, AJAY CHOUDRY, MD, § OF HARRIS COUNTY, TEXAS
NATIONAL INTERVENTIONAL §
RADIOLOGY PARTNERS, PLLC, NIRP §
MANAGEMENT, LLC, NIRP PASADENA, §
PLLC, NIRP SUGARLAND, PLLC, §
DEFENDANTS. § 165th JUDICIAL DISTRICT
PLAINTIFF’S MOTION FOR LEAVE TO FILE
PLAINTIFF’S FIRST SUPPLEMENTAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Plaintiff, SAM ALAM (“Plaintiff”), and file this, their Motion for Leave
to File Plaintiff’s First Supplemental Petition and would respectfully show the Court as follows:
I. INTRODUCTION AND FACTS
1. Plaintiff sued Andrew Gomes, MD, Mahendra Agraharkar, MD, Ajay Choudhry, MD,
National Interventional Radiology Partners, PLLC, NIRP Management, LLC, NIRP Pasadena,
PLLC, NIRP Sugarland, PLLC (collectively, “Defendants”) on June 30, 2017.
2. In Plaintiff’s Original Petition, Plaintiff asserted causes of action for negligence, breach of
contract, breach of fiduciary duty, negligence per se, negligent misrepresentation, DTPA violations,
tortious interference with prospective business relations, fraud, fraudulent inducement, constructive
fraud, aiding and abetting, and conspiracy.
3. Plaintiff wishes to add the claim of quantum meruit as an alternative cause of action to his
breach of contract claim.
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4. Plaintiff’s quantum meruit theory of recovery is based on Plaintiff’s allegations that he
performed valuable work for Defendants, Defendants accepted those services expecting to pay
Plaintiff, and Defendants refused to compensate Plaintiff.
5. Plaintiff designed a medical business for Defendants, put in hundreds of hours of time, told
Defendants that he expected compensation, and Defendants even agreed to compensate plaintiff.
See Ex. A, Affidavit of Sam Alam.
6. The pleadings deadline in this case was set for July 30, 2018. See Ex. B, Docket Control
Order.
7. Trial was set for the two-week period beginning October 1, 2018 but this case was not
reached. See Ex. B.
8. A new trial date has not been set yet.
9. A copy of Plaintiff’s proposed First Supplemental Petition adding his quantum meruit claim
is attached hereto as Exhibit C.
II. ARGUMENTS & AUTHORITY
10. A court’s permission to file an amended pleading is required only when the pleadings are
filed (1) less than seven days before trial, (2) after a deadline in a pretrial order, or (3) when the
amendment changes the case from a Level 1 case into a Level 2 or 3 case less than 45 days before
trial. See Tex. R. Civ. P. 63, 190.2(b)(3); Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844
S.W.2d 664, 665 (Tex. 1992); Hart v. Moore, 952 S.W.2d 90, 95 (Tex. App. Amarillo 1997, pet.
denied).
11. There are only three instances when the trial court has the discretion to deny leave to amend
a pleading after the deadline: (1) when the opposing party presents evidence of surprise; (2) when
the amendment asserts a new claim or defense, which is prejudicial on its face; or (3) when the
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amendment changes the case from a Level 1 to a Level 2 or 3 case, and the party presenting the
amendment cannot show that good cause to file outweighs the prejudice to the opposing party. See
Tex. R. Civ. P. 63, 190.2(b)(3); Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.
1990). The burden of showing surprise rests on the opposing party. Burrow v. Arce, 997 S.W.2d
229, 246 (Tex. 1999); Greenhalgh, 787 S.W.2d at 939.
12. Here, there are several causes of action against Defendants including breach of contract,
which is similar to quantum meruit. The facts used in the breach of contract cause of action are
similar facts being used in the quantum meruit cause of action. Also, since there has been little no
discovery in this case, there is no prejudice to the Defendants to discover what they need relating
to the quantum meruit action. Plaintiff is unopposed to allowing Defendants to conduct discovery
on Plaintiff’s quantum meruit claim.
13. Allowing Plaintiff to simply add quantum meruit as a cause of action against the
Defendants in this present case will avoid the expense of filing an additional new lawsuit.
Plaintiff’s causes of action against the Defendants are still well within the four-year statute of
limitations for quantum meruit.
III. PR AYE R
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Sam Alam, pray that they have
leave to file Plaintiff’s First Supplemental Petition to add quantum meruit as a cause of action
against the Defendants Andrew Gomes, MD, Mahendra Agraharkar, MD, Ajay Choudhry, MD,
National Interventional Radiology Partners, PLLC, NIRP Management, LLC, NIRP Pasadena,
PLLC, NIRP Sugarland, PLLC.
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Respectfully submitted,
THE WELSCHER MARTINEZ LAW FIRM
Nicholas Martinez________
Craig Welscher
TBN: 21167200
Nicholas T. Martinez
TBN: 24087986
1111 North Loop West, Suite 702
Houston, Texas 77008
Telephone: (713) 862-0800
Facsimile: (713) 862-4003
Email: nmartinez@twmlawfirm.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
forwarded to all known counsel of record in the manner required by the Texas Rules of Civil
Procedure, on this the 16th day of October, 2018.
Via Electronic Service
Kenneth E. McKay
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
1301 McKinney Street
Suite 3700
Houston, Texas 77010
Attorney for Defendants
/s/ Nicholas Martinez
Nicholas Martinez
CERTIFICATE OF CONFERENCE
I hereby certify that I have reached out to opposing counsel regarding this Motion and that
they are opposed to this Motion.
/s/ Nicholas Martinez
Nicholas Martinez
4
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CAUSE NO. 2017-43835 SAM ALAM, § IN THE DISTRICT COURT OF PLAINTIFF, § § V. § § ANDREW GOMES, MD, MAHENDRA § AGRAHARKAR, MD, AJAY CHOUDRY, MD, § OF HARRIS COUNTY, TEXAS NATIONAL INTERVENTIONAL § RADIOLOGY PARTNERS, PLLC, NIRP § MANAGEMENT, LLC, NIRP PASADENA, § PLLC, NIRP SUGARLAND, PLLC, § DEFENDANTS. § 165th JUDICIAL DISTRICT PLAINTIFF’S MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST SUPPLEMENTAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, SAM ALAM (“Plaintiff”), and file this, their Motion for Leave to File Plaintiff’s First Supplemental Petition and would respectfully show the Court as follows: I. INTRODUCTION AND FACTS 1. Plaintiff sued Andrew Gomes, MD, Mahendra Agraharkar, MD, Ajay Choudhry, MD, National Interventional Radiology Partners, PLLC, NIRP Management, LLC, NIRP Pasadena, PLLC, NIRP Sugarland, PLLC (collectively, “Defendants”) on June 30, 2017. 2. In Plaintiff’s Original Petition, Plaintiff asserted causes of action for negligence, breach of contract, breach of fiduciary duty, negligence per se, negligent misrepresentation, DTPA violations, tortious interference with prospective business relations, fraud, fraudulent inducement, constructive fraud, aiding and abetting, and conspiracy. 3. Plaintiff wishes to add the claim of quantum meruit as an alternative cause of action to his breach of contract claim. 1 4. Plaintiff’s quantum meruit theory of recovery is based on Plaintiff’s allegations that he performed valuable work for Defendants, Defendants accepted those services expecting to pay Plaintiff, and Defendants refused to compensate Plaintiff. 5. Plaintiff designed a medical business for Defendants, put in hundreds of hours of time, told Defendants that he expected compensation, and Defendants even agreed to compensate plaintiff. See Ex. A, Affidavit of Sam Alam. 6. The pleadings deadline in this case was set for July 30, 2018. See Ex. B, Docket Control Order. 7. Trial was set for the two-week period beginning October 1, 2018 but this case was not reached. See Ex. B. 8. A new trial date has not been set yet. 9. A copy of Plaintiff’s proposed First Supplemental Petition adding his quantum meruit claim is attached hereto as Exhibit C. II. ARGUMENTS & AUTHORITY 10. A court’s permission to file an amended pleading is required only when the pleadings are filed (1) less than seven days before trial, (2) after a deadline in a pretrial order, or (3) when the amendment changes the case from a Level 1 case into a Level 2 or 3 case less than 45 days before trial. See Tex. R. Civ. P. 63, 190.2(b)(3); Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992); Hart v. Moore, 952 S.W.2d 90, 95 (Tex. App. Amarillo 1997, pet. denied). 11. There are only three instances when the trial court has the discretion to deny leave to amend a pleading after the deadline: (1) when the opposing party presents evidence of surprise; (2) when the amendment asserts a new claim or defense, which is prejudicial on its face; or (3) when the 2 amendment changes the case from a Level 1 to a Level 2 or 3 case, and the party presenting the amendment cannot show that good cause to file outweighs the prejudice to the opposing party. See Tex. R. Civ. P. 63, 190.2(b)(3); Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). The burden of showing surprise rests on the opposing party. Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999); Greenhalgh, 787 S.W.2d at 939. 12. Here, there are several causes of action against Defendants including breach of contract, which is similar to quantum meruit. The facts used in the breach of contract cause of action are similar facts being used in the quantum meruit cause of action. Also, since there has been little no discovery in this case, there is no prejudice to the Defendants to discover what they need relating to the quantum meruit action. Plaintiff is unopposed to allowing Defendants to conduct discovery on Plaintiff’s quantum meruit claim. 13. Allowing Plaintiff to simply add quantum meruit as a cause of action against the Defendants in this present case will avoid the expense of filing an additional new lawsuit. Plaintiff’s causes of action against the Defendants are still well within the four-year statute of limitations for quantum meruit. III. PR AYE R WHEREFORE, PREMISES CONSIDERED, Plaintiff, Sam Alam, pray that they have leave to file Plaintiff’s First Supplemental Petition to add quantum meruit as a cause of action against the Defendants Andrew Gomes, MD, Mahendra Agraharkar, MD, Ajay Choudhry, MD, National Interventional Radiology Partners, PLLC, NIRP Management, LLC, NIRP Pasadena, PLLC, NIRP Sugarland, PLLC. 3 Respectfully submitted, THE WELSCHER MARTINEZ LAW FIRM Nicholas Martinez________ Craig Welscher TBN: 21167200 Nicholas T. Martinez TBN: 24087986 1111 North Loop West, Suite 702 Houston, Texas 77008 Telephone: (713) 862-0800 Facsimile: (713) 862-4003 Email: nmartinez@twmlawfirm.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument was forwarded to all known counsel of record in the manner required by the Texas Rules of Civil Procedure, on this the 16th day of October, 2018. Via Electronic Service Kenneth E. McKay Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 1301 McKinney Street Suite 3700 Houston, Texas 77010 Attorney for Defendants /s/ Nicholas Martinez Nicholas Martinez CERTIFICATE OF CONFERENCE I hereby certify that I have reached out to opposing counsel regarding this Motion and that they are opposed to this Motion. /s/ Nicholas Martinez Nicholas Martinez 4