United States District Court, D. Nebraska
Gossett United States Magistrate Judge
matter is before the court on the Motion for Leave to File
Amended Complaint (Filing No. 62) filed by the
plaintiff, Valley Boys Inc. (“Valley Boys”). The
court will deny the motion.
Boys filed the present action against Allstate Insurance
Company (“Allstate”) for breach of contract and
bad faith arising out of Allstate’s alleged failure to
pay the full amount of loss sustained by several of
Allstate’s insureds after a hailstorm on April 9, 2013.
(Filing No. 1-1 at pp. 6-7). Valley Boys alleges it
was assigned twenty-seven claims of Allstate insureds under
their policies with Allstate. (Filing No. 1-1 at pp.
6-7, 20). The complaint alleges Allstate owes its
insureds, and Valley Boys as assignee, an additional $569,
065.14 for various services and repairs Valley Boys provided
to Allstate’s insureds. (Filing No. 1-1 at pp.
7-20). Valley Boys seeks leave to amend its complaint to
add two additional claims assigned to it by Allstate insureds
(“the Brunken and Sather claims”). (Filing
Federal Rule of Civil Procedure 15, the Court should
“freely give leave” to amend a pleading
“when justice so requires.” Fed. R. Civ. P.
15(a). Nevertheless, a party does not have an absolute
right to amend and “denial of leave to amend may be
justified by undue delay, bad faith on the part of the moving
party, futility of the amendment or unfair prejudice to the
opposing party.” Amrine v. Brooks, 522 F.3d
823, 833 (8th Cir. 2008) (quotation and citation omitted).
When a party seeks leave to amend under Rule 15(a) of the
Federal Rules of Civil Procedure outside of the time period
established by a scheduling order, the party must first
demonstrate good cause under Rule 16(b). See Popoalii v.
Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008);
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716
(8th Cir. 2008). “The primary measure of Rule
16’s good cause standard is the moving party’s
diligence in attempting to meet the case management
order’s requirements.” Bradford v. DANA
Corp., 249 F.3d 807, 809 (8th Cir. 2001). “[I]f
the reason for seeking the amendment is apparent before the
deadline and no offsetting factors appear, the Rule 16
deadline must govern.” Financial Holding Corp. v.
Garnac Grain Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989).
Whether to grant a motion for leave to amend is within the
sound discretion of the district court. Popoalii,
512 F.3d at 497.
scheduling order in this case provided February 27, 2015, as
the deadline to amend pleadings. (Filing No. 28 at p.
1). Valley Boys filed the present motion to amend on
March 28, 2016, more than a year after the deadline. Valley
Boys argues it did not have standing to bring the Brunken and
Sather claims prior to the amendment deadline because both
claims were assigned to it subsequent to the amendment
deadline. (Filing No. 70 at p. 2). Although it
appears both assignments did occur subsequent to the
amendment deadline, the Sather claim was assigned to Valley
Boys on June 17, 2015, nearly nine months before Valley Boys
filed of the present motion. The Brunken claim was assigned
to Valley Boys on January 11, 2016. (Filing No. 62-1 at
pp. 51-52). According to the complaint, each assigned
claim arises out Allstate’s alleged failure to pay the
full amount of loss sustained by its insureds after a
hailstorm on April 9, 2013. Valley Boys does not explain the
protracted delay in obtaining the Brunken and Sather claim
assignments, nor does Valley Boys explain why it did not seek
to amend the complaint nine months ago after obtaining the
Sather claim assignment.
permitting Valley Boys to amend its complaint at this time to
add additional claims would impair Allstate’s ability
to conduct adequate discovery. Following several extensions
of time, the most recent progression order provides that
written discovery shall close June 30, 2016, and fact
depositions by July 29, 2016. (Filing No.
58). Adding additional claims at this time would result
in additional discovery and likely delay the proceedings. See
Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943
(8th Cir. 2000) (“Where an amendment would likely
result in the burdens of additional discovery and delay to
the proceedings, a court usually does not abuse its
discretion in denying leave to amend.”).
it is unclear which amended pleading Valley Boys seeks to
file. This court’s local rules provides that a party
“must file as an attachment to the motion an unsigned
copy of the proposed amended pleading that clearly identifies
the proposed amendments.” NECivR 15.1(a).
Valley Boys attached an “Amended Complaint and Demand
for Jury Trial” to its motion to amend. (Filing No.
62-1). However, prior to filing the instant motion,
counsel for Valley Boys conferred with opposing counsel
regarding a “Second Amended Complaint and Demand for
Jury Trial, ” which differs substantially from the
proposed amended complaint attached to the motion.
(Filing No. 69-1). Valley Boys’ brief in
support of its motion also refers to a proposed Second
Amended Complaint. (Filing No. 70 at pp. 4-5).
Having fully considered the ...