United States District Court, D. Nebraska
APPLIED RISK SERVICES, INC., a Nebraska Corporation; Plaintiff,
BEEMAC DRIVER MANAGEMENT, LLC, a Pennsylvania Limited Liability Company; Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
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.
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).
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.
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).
Proposed Addition of Drivers Management Solutions, LLC as
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.
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.
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.
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)
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 ...