United States District Court, D. Nebraska
BROOM, CLARKSON, LANPHIER & YAMAMOTO, a Partnership, Plaintiff,
EDWARD KOUNTZE, individually and as Personal Representative of the Estate of Denman Kountze, Jr. in Collier County, Florida, Defendant.
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the defendant's, Edward Kountze (Kountze), Motion for Leave to File Counterclaim (Filing No. 35). The plaintiff, Broom, Clarkson, Lanphier & Yamamoto (BCLY), filed a brief (Filing No. 39) and index of evidence (Filing No. 40) in opposition. Kountze filed a brief (Filing No. 42) and index of evidence (Filing No. 43) in reply.
This action pertains to Kountze's alleged failure to pay attorneys' fees due to BCLY. See Filing No. 1 - Notice of Removal Ex. A - Complaint. The parties entered into an agreement for the provision of legal services on September 15, 2004. Id. BCLY alleges it performed the legal services and Kountze has refused to pay for such services. Id. BCLY filed this action on September 25, 2013, in the District Court of Douglas County, Nebraska. Id. Thereafter, on July 17, 2014, Kountze removed this action to the United States District Court for the District of Nebraska. Id. On May 1, 2015, within the court's deadline to file a motion to amend the pleadings,  Kountze filed the instant motion. See Filing No. 35 - Motion. Kountze seeks to file a counterclaim for breach of contract on the basis BCLY overcharged him and engaged in a pattern of overbilling for legal services and performing unnecessary, excessive, unauthorized, and unreasonable work. See Filing No. 35-1 - Counterclaim; Filing No. 42 - Reply. BCLY asserts Kountze's breach of contract counterclaim is actually a professional negligence claim. See Filing No. 39 - Response. As a result, BCLY contends a two-year statute of limitations applies to Kountze's counterclaim and because the last possible date BCLY rendered professional services was January 2013, Kountze's counterclaim is time barred. Id. (citing Neb. Rev. Stat. § 25-222; Filing No. 35-1 - Counterclaim ¶ 36; Filing No. 40-1 - Lanphier Aff. ¶ 13). BCLY also argues Kountze's counterclaim does not relate back to the time BCLY filed its complaint. Id. (citing Ed Miller & Sons, Inc. v. Earl, 502 N.W.2d 444 (Neb. 1993)). In reply, Kountze argues although his counterclaim is a breach of contract claim, regardless of how his claim is characterized, Nebraska law expressly holds that for purposes of the statute of limitations, a counterclaim, as an action, is considered commenced on the date the plaintiff's complaint is filed. See Filing No. 42 - Reply p. 7-12 (citing Becker v. Hobbs, 590 N.W.2d 360 (Neb. 1999)). Kountze argues because BCLY filed its complaint on September 25, 2013, Kountze's counterclaim is within the two-year statute of limitations. Id.
A court should grant leave to amend freely "when justice so requires." Fed.R.Civ.P. 15. There is no absolute right to amend. See Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Whether to grant a motion for leave to amend is within the sound discretion of the district court. See Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). Leave to amend would be futile if the amended claim is time barred by an applicable statute of limitations. See Enervations, Inc. v. Minnesota Mining & Mfg. Co., 380 F.3d 1066, 1068-69 (8th Cir. 2004).
According to the parties, January 24, 2013, the date BCLY withdrew from representing Kountze, is the earliest the statute of limitations began to run on Kountze's counterclaim. Assuming, for purposes of this motion, Kountze's counterclaim is one of professional negligence, thus a two-year statute of limitations applies, Kountze had until January 24, 2015, to file his counterclaim. See Neb. Rev. Stat. § 25-222 (establishing a two-year statute of limitations for claims based on alleged professional negligence). As stated in Becker, "whether a counterclaim is barred by the applicable statute of limitations is determined by the date the plaintiff's petition was filed, rather than the date the counterclaim was filed." Becker, 590 N.W.2d at 365. BCLY filed its complaint on September 25, 2013. See Filing No. 1 - Ex. A Complaint. Because Kountze's counterclaim relates back to the time BCLY filed its complaint, Kountze's counterclaim is considered filed on September 25, 2013. Ed Miller & Sons, which BCLY relies on to support its argument Kountze's counterclaim does not relate back to the time BCLY filed its complaint, is distinguishable from this case. As discussed in Becker,
In Ed Miller & Sons, Inc., unlike in [ Becker ], the applicable statute of limitations had run on the counterclaim prior to the date that the plaintiff filed its petition. In fact, the statute of limitations on the counterclaim in Ed Miller & Sons, Inc. had run more than a year before the plaintiff filed its petition.... Thus, the defendant's counterclaim in Ed Miller & Sons, Inc. did not meet the requirement that the counterclaim be a viable action on the date that the plaintiff's petition is filed, and our conclusion is not contradictory to the facts in Ed Miller & Sons, Inc.
Becker, 590 N.W.2d at 365-66. Similar to Becker, and unlike Ed Miller & Sons, Kountze had "a viable action on the date" BCLY filed its complaint. Therefore, the court finds Kountze's counterclaim is timely. Accordingly,
IT IS ORDERED:
1. Kountze's Motion for Leave to File Counterclaim (Filing No. 35) is granted.
2. Kountze shall have until June 26, 2015, to file the counterclaim.
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fourteen (14) days after being served with a copy of this Order. Failure to timely object may constitute a waiver of any objection. The brief in support of any objection shall be filed at the time of filing such objection. Failure to ...