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Applied Risk Services, Inc. v. Beemac Driver Management, LLC

United States District Court, D. Nebraska

May 26, 2016

APPLIED RISK SERVICES, INC., a Nebraska Corporation; Plaintiff,
BEEMAC DRIVER MANAGEMENT, LLC, a Pennsylvania Limited Liability Company; Defendant.


          Cheryl R. Zwart United States Magistrate Judge

         Plaintiff Applied Risk Services, Inc. (“ARS”) moved for leave to amend its complaint to change the name of the plaintiff and add Drivers Management Solutions, LLC as a defendant. (Filing No. 33). For the following reasons, the motion will be denied.


         Plaintiff ARS’s complaint against Beemac Driver Management LLC (“Beemac”) was filed in state court and removed to federal court. (Filing No. 1-1). In January of 2016, the court granted Defendant’s motion to dismiss, reasoning that while the complaint alleged a the existence of a contract and damages, it did not contain facts demonstrating that the defendant breached any promise to the plaintiff. (Filing No. 19 at CM/ECF p. 2). The court afforded Plaintiff time to replead, and on February 4, 2016, ARS filed its amended complaint. The amended complaint named Beemac as the defendant and alleged Beemac breached its obligations under a Reinsurance Personnel Agreement entered into by Applied Underwriters Captive Risk Assurance Company, Inc. (“AUCRA”), Beemac, and Drivers Management Solutions, LLC (“Drivers Management”). (Filing No. 20 ¶¶ 3, 6, & 8). The complaint alleged that ARS was the billing agent “and was authorized by AUCRA and [Beemac] to account for, offset and true up any and all amounts due . . . and authorized to collect any amounts due under the [Agreement].” (Filing No. 20 ¶ 4).

         The court entered its final progression order in March, setting an April 29, 2016 deadline for moving to amend the pleadings or add parties. (Filing Nos. 25, 23). Plaintiff timely filed this motion on April 29, 2016.


         If the time for amending a pleading of a matter of course has expired, or a party has previously amended the complaint, a pleading may be amended only if the opposing party consents or with leave of court. Fed.R.Civ.P. 15. Courts are encouraged to allow amendments liberally, (see Shen v. Leo A. Daly Co., 222 F.3d 472, 478 (8th Cir. 2000), but there is no absolute right to amend a pleading. Hammer v. City of Osage Beach, Mo., 318 F.3d 832, 844 (8th Cir. 2003). Leave to amend may be denied for good reason including “undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of amendment[.]” Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003).

         1. Proposed Addition of Drivers Management Solutions, LLC as Defendant

         Beemac argues that allowing the amendment will substantially delay the progression and resolution of this case. It argues that allowing time for serving the new defendant will require amending the progression schedule, will lead to greater motion practice, and will extend discovery.

         ARS filed its motion within the time proposed in the parties’ Rule 26(f) report and memorialized in the progression order. While the amended complaint may lead to further motion practice and greater discovery, on balance, time is saved when all proper parties to a transaction dispute are before the court at one time. Assuring that result does not create undue delay. Had timing been a substantial concern before Plaintiff’s motion was filed, an earlier amendment deadline could have been proposed. But under the circumstances presented, ARS’ motion is timely, and Beemac’s objection based on speculation about potential case preparation delay does not support a finding of “undue delay” or the denial of Plaintiff’s motion on that basis.

         Beemac next argues the proposed amendment is futile. The court will deny a motion for leave to amend as futile if the Plaintiff’s proposed complaint fails to state a claim under the pleading standard described in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), thereby rendering the complaint subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Zutz v. Nelson, 601 F.3d 842, 850-51 (8th Cir. 2010). A complaint must contain sufficient facts which, if accepted as true, state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). When assessing whether a plausible claim was alleged, the court considers only the materials that are “necessarily embraced by the pleadings and exhibits attached to the complaint.” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012). The question at this preliminary stage is not whether the plaintiff might be able to prove his claim, but whether the has “adequately asserted facts (as contrasted with naked legal conclusions) to support” those claims. Id. at 1128-29.

         To state a claim for breach of contract under Nebraska law, a plaintiff must plead facts showing “the existence of a promise, its breach, damage, and compliance with the conditions precedent which activate the defendant’s duty.” Dep’t of Banking & Fin. of State of Neb. v. Wilken, 352 N.W.2d 145, 147 (Neb. 1984). Plaintiff’s proposed second amended complaint alleges: Beemac and Drivers Management entered into an agreement with AUCRA (filing No. 31 ¶ 4); although AUCRA performed all conditions precedent, Beemac and Drivers Management breached by failing to pay amounts due under the agreement; (id. ¶¶ 5, 6); and as a result, Plaintiff was damaged. (Id. ¶ 8)

         Plaintiff’s proposed complaint is concise, but it pleads facts supporting all elements of a Nebraska breach of contract action; a promise in the form of a contract; a breach of obligations under the contract; damages; and performance by the plaintiff. Accepting Plaintiff’s facts as true, the amended complaint states a claim that is plausible on its face. In addition, the court notes the proposed complaint is nearly identical to the amended complaint aside from omitting ARS and ...

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