United States District Court, District of Nebraska
For Aurora Cooperative Elevator Company, Plaintiff: Andre R. Barry, Coady H. Pruett, Kevin J. Schneider, Richard P. Garden, Jr., Terry R. Wittler, CLINE, WILLIAMS LAW FIRM - LINCOLN, Lincoln, NE; Jonathan J. Papik, CLINE, WILLIAMS LAW FIRM - OMAHA, Omaha, NE.
For Aventine Renewable Energy - Aurora West, LLC, Aventine Renewable Energy Holdings, Inc., Defendants: Allison D. Balus, Jennifer D. Tricker, William G. Dittrick, BAIRD, HOLM LAW FIRM, Omaha, NE; Christopher M. Egleson, PRO HAC VICE, AKIN, GUMP LAW FIRM - IRVINE, Irvine, CA; J. Eric Gambrell, PRO HAC VICE, AKIN, GUMP LAW FIRM - DALLAS, Dallas, TX; Nancy Chung, PRO HAC VICE, AKIN, GUMP LAW FIRM - NEW YORK, New York, NY.
MEMORANDUM AND ORDER
Cheryl R. Zwart, United States Magistrate Judge.
The plaintiff has moved to amend its complaint to add claims for monetary relief. The proposed amended complaint alleges the defendants breached their contract with the plaintiff, have refused to convey ownership of the Aurora West Facility to Aurora Co-op as required under the contract, and " [a]s a result of defendants' delay in providing Aurora Co-op with marketable title to the Aurora West Facility, defendants have been unjustly enriched and Aurora Co-op has suffered damages." (Filing No. 151-1, at CM/ECF p. 8, ¶ 31). The proposed amended complaint adds the following requests for relief:
2. An order imposing a constructive trust and requiring defendants to account for and pay over to Aurora Co-op the greater of all rents, profits, and income which defendants have actually received as of the date of judgment or which defendants might have received by the exercise of reasonable care and diligence.
3. In the alternative, an order requiring Aventine to compensate Aurora Co-op for all damages it has suffered as a result of defendants' delay in conveying title to the Aurora West Facility[.]
(Filing No. 151-1, at CM/ECF p. 8).
The defendants oppose the motion, arguing: 1) it is untimely and if granted, will prejudice the defendants; and 2) the requested amendment must be denied as futile because the proposed new allegations fail to state a claim. (Filing No. 159, at CM/ECF p. 3). For the reasons discussed below, the plaintiff's motion will be granted.
In the Final Progression Order dated April 18, 2013, the court set a June 30, 2013 deadline for moving to amend pleadings. (Filing No. 50). That order was amended on November 27, 2013. (Filing No. 91). The amended order did not mention the deadline for moving to amend pleadings--likely because that deadline from the original order had already passed. On March 10, 2014, due to the parties' ongoing battles over electronic discovery, the court set aside all deadlines in the amended progression order. (Filing No. 147). Since the deadline for moving to amend pleadings was not mentioned in the amended progression order, June 30, 2013 remains the court-ordered deadline for such motions.
A party seeking to amend a pleading after the court-ordered deadline must show good cause for its delay. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008); see also Fed.R.Civ.P. 16(b). " The primary measure of good cause is the movant's diligence in attempting to meet the order's requirements." Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006). If the movant has not been diligent, other factors, such as prejudice to the nonmoving party, will not be considered. See Winco, 532 F.3d at 717 (internal citations omitted).
Based on the evidence of record, the circumstances have changed significantly since June 30, 2013. The Aurora West Facility, which was dormant as of June 30, 2013, became an active and profitable ethanol producer during the summer of 2014. (Filing No. 153-2, Filing No. 153-3). The plaintiff argues these recent changes warrant adding claims to recover the plaintiff's damages arising from the defendants' failure to timely transfer ownership of the facility to Aurora Co-op; that the defendants are now profiting from their breach of contract, and the plaintiff is entitled to recover those profits and its damages.
Under the change of circumstances presented, the court finds the plaintiff was diligent in moving to amend the complaint. The motion was filed within two months of defendants' reported profitable use of the facility. And although this case has already been pending for over two years, it appears it will remain pending for a long time to come. Adding claims for monetary relief at this point will not prejudice the defendants' ability to prepare the case and defend ...