United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
R. ZWART UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff’s motion to
amend his complaint. (Filing No. 135). For the reasons set
forth below, the motion for leave to amend should denied.
Shane Harrington filed his initial complaint in this matter
on May 15, 2015. (Filing No. 1). The initial complaint raised
numerous allegations against multiple defendants claiming
Defendants were unlawfully impeding his ability to open an
adult entertainment venue in Hall County, Nebraska, and
Harrington had incurred damages as a result of this conduct.
Various named defendants filed motions to dismiss. With
respect to defendant Hall County, Nebraska,
Harrington’s initial complaint alleged the
county’s zoning ordinances violated his First Amendment
right to free speech, the Establishment Clause, the Equal
Protection Clause of the Fourteenth Amendment, the Due
Process Clause of the Fourteenth Amendment, and anti-trust
statutes. The initial complaint also alleged common law
claims for defamation, interference with a business
relationship, infliction of emotional distress, negligence,
and negligent hiring, supervision, and training.
claims within Plaintiff’s initial complaint were
dismissed. (Filing No. 132). Judge Gerrard’s order of
dismissal further stated:
The plaintiff may file a new motion to amend his complaint by
April 21, 2016, provided his proposed amended complaint takes
into consideration the principles and analysis set forth
above. To the extent the plaintiff believes there are any
claims or allegations in his previously filed proposed
amended complaint that could survive a motion to dismiss, he
may reassert those claims and allegations.
Filing No. 132 at CM/ECF p. 30, ¶9.
April 5, 2016, Harrington filed an amended complaint naming
only Hall County, Nebraska; the Law Office of Scott D.
Bergthold; and attorney Scott D. Bergthold as defendants.
(Filing No. 135). Harrington then moved to strike his filed
amended complaint, moved for leave to file an amended
complaint, (Filing No. 135), and then filed a motion to amend
his motion for leave to file an amended complaint. (Filing
No. 138). In the end, the operative proposed amended
complaint is Filing No. 138-1, and it names Harrington and
Midwest Girls Club as plaintiffs and Hall County, Nebraska as
the sole defendant. (Filing No. 138-1).
proposed amended complaint alleges the Hall County zoning
amendments passed in 2015 are vague, overbroad, and violate
Plaintiffs’ rights of association, assembly, and free
speech. (Filing No. 138-1 at CM/ECF p. 4, ¶
14). Specifically, Plaintiffs allege they are
“prohibited from assembling, associating, and engaging
in free speech, free expression, nudity, sexual contact, or
non-sexual contact in Hall County . . . .” (Filing No.
138-1 at CM/ECF p. 5, ¶ 18.) Claims one through six of
the proposed amended complaint purport to address the alleged
constitutional deficiencies of the initial complaint as
previously identified by Judge Gerrard. Plaintiffs’
seventh claim raises various alleged violations of
Plaintiffs’ right to equal protection, and the eighth
claim alleges Defendant violated the Twenty-First Amendment.
The remaining claims are based on Nebraska law: Claim nine
alleges violations of the Nebraska Open Meetings Act, and
claims ten and eleven allege negligence claims.
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).
to amend should be denied as futile “where the proposed
amendment would not cure the defect the party sought to
correct.” Asbury Square, L.L.C. v. Amoco Oil
Co., 218 F.R.D. 183, 195 (S.D. Iowa 2003); see
also Mississippi River Revival, Inc. v. City of
Minneapolis, 319 F.3d 1013, 1018 (8th Cir. 2003);
K-tel, Int'l, Inc., 300 F.3d at 899;
Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871
(8th Cir. 2002); Ingrim v. State Farm Fire & Cas.
Co., 249 F.3d 743, 745-46 (8th Cir. 2001). That is,
“a court may deny a motion for leave to amend for
futility if the proposed amendments would not save the
party's claim from dismissal.” Asbury Square,
L.L.C., 218 F.R.D. at 195 (citing Mississippi River
Revival, Inc., 319 F.3d at 1018).
case, Defendant essentially argues the proposed amended
complaint is futile because it reasserts the claims
previously dismissed by the court without curing the fatal
defects. The court will address each of the proposed claims
One through Six: Constitutional Challenges to Zoning
first six claims in the proposed amended complaint allege
constitutional violations based on Hall County’s zoning
restrictions. Defendant argues Plaintiffs do not have
standing to bring these claims. And, Defendant further
argues, because Judge Gerrard previously determined Plaintiff
Harrington lacked standing to challenge Hall ...