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Fjellin v. Penning

United States District Court, D. Nebraska

May 11, 2015

JACQUELINE C. FJELLIN, for and as Trustee of the Leonard Van Liew Living Trust, and JAMES J. VAN LIEW, for and as Trustee of the Leonard Van Liew Living Trust, Plaintiffs,
v.
MARVIN PENNING, individually, MARY PENNING, individually, MYRON KAPLAN, individually, and MCGILL GOTSDINER WORKMAN & LEPP, P.C., L.L.O., Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

In September 2014, I granted a Rule 12(b)(6) motion (Filing 10) filed by defendants Myron Kaplan ("Kaplan") and McGill Gotsdiner Workman & Lepp, P.C., L.L.O. ("McGill"), as to Plaintiffs' UCC (Uniform Commercial Code) and negligence claims against them. I granted Plaintiffs leave to file a motion to amend their complaint "to assert claims against [Kaplan and McGill] related to the allegation that defendant Kaplan caused sale proceeds to be kept from the Trust." The motion for leave to file an amended complaint was to be filed by September 19, 2014. (Filing 20.)

In compliance with my order, Plaintiffs filed a motion to file and serve an amended complaint on September 19, 2014. (Filing 21.) However, in violation of my order, Plaintiffs included in their proposed amended complaint two additional defendants and claims against them, and also reasserted the previously dismissed UCC and negligence claims against Kaplan and McGill. (Filing 21-1.)

After briefing on Plaintiffs' motion to file an amended complaint (Filings 22, 23, 25), and on February 11, 2015, Magistrate Judge Zwart denied (Filing 26) Plaintiffs' motion for leave to amend because the proposed amended complaint failed to allege the citizenship of members of two Minnesota LLCs that Plaintiffs sought to add as new defendants such that complete diversity could be lacking.

On February 24, 2015, Plaintiffs filed an objection (Filing 29) to Magistrate Judge Zwart's order, followed the next day by a second motion for leave to amend the complaint. (Filing 32). In light of the second motion for leave to amend the complaint, I denied as moot the Plaintiffs' objection to Magistrate Judge Zwart's order denying Plaintiffs' first motion for leave to amend. (Filing 37.)

Plaintiffs' second motion for leave to amend the complaint (Filing 32), now pending before me, states that Plaintiffs have removed one of the two new LLC defendants and have added jurisdictional allegations against the other new LCC defendant. Plaintiffs also admit that they have indeed reasserted the dismissed UCC and negligence claims against Kaplan and McGill, but only "for the sole purpose of preserving their right to appeal from the dismissal of such claim[s]."[1] (Filing 32 at CM/ECF p. 2.)

I shall deny Plaintiffs' second motion for leave to amend the complaint (Filing 32) because the proposed amended complaint (Filing 32-1) fails to comply with this court's prior order (Filing 20)-which allowed amendments by September 19, 2014, solely "to assert claims against [Kaplan and McGill] related to the allegation that defendant Kaplan caused sale proceeds to be kept from the Trust." Specifically, the proposed amended complaint, without leave to do so, (a) was filed four months beyond the court's deadline; (b) added a new defendant and claims against that defendant; and (c) contained the previously dismissed UCC and negligence causes of action against Kaplan and McGill.[2]

Accordingly,

IT IS ORDERED that Plaintiffs' Motion for Leave to Amend the Complaint (Filing 32) is denied.


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