United States District Court, D. Nebraska
MCDONALD APIARY, LLC, a Nebraska Limited Liability Company, Plaintiff,
STARRH BEES, INC., a California Corporation, et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge
matter is before the Court on McDonald Apiary, LLC's
motion for leave to file a third amended complaint
(filing 135). McDonald's motion will be granted.
filed its initial complaint on November 12, 2014, and filed
an amended complaint on November 19. Filing 1;
filing 6. On July 9, 2015, the Court entered its
final progression schedule consistent with the parties'
Fed. R. Civ. P. 26(f) report, setting an August 31
deadline for McDonald to move for leave to file an amended
pleading. Filing 46. On August 31, McDonald filed an
unopposed motion to file a second amended complaint.
Filing 57. The motion was granted, see
filing 58, and McDonald's operative Second Amended
Complaint was filed September 1. Filing 59.
operative Second Amended Complaint contains ten claims: (1)
Theft of Trade Secrets under Neb. Rev. Stat § 87-501
et seq.; (2) Trespass; (3) Breach of Contract; (4)
Tortious Interference with Business Relationships and
Expectancies; (5) Conversion; (6) Deceptive Trade Practices
under Neb. Rev. Stat. §§ 87-301-306; (7)
Fraud; (8) Negligence; (9) Quantum Meruit; and (10) Unjust
Enrichment. See filing 59 at 9-21. Although
many of McDonald's claims center on a 2014 oral contract
allegedly entered into by the parties, other claims-such as
the trade secrets and deceptive trade practices claims-allege
that the defendants purposefully stole beehive location data
in order to advance their business and harm McDonald.
See filing 59.
the progression of this case, the parties moved for several
deadline extensions, but never sought to amend the deadline
for amending the pleadings or adding parties. Based on the
case's current progression schedule, trial is set for
October 24, 2016, and all other progression deadlines have
filed the current motion for leave to amend its complaint on
June 30, 2016. Filing 135. In its proposed Third
Amended Complaint, McDonald seeks to add new facts and
allegations to several claims. McDonald argues that through
the defendants' discovery responses in late March 2016,
depositions of the defendants' employees, and by
defendant Starrh Bees' placement of its hives for the
2016 season beginning in May 2016, it learned:
• Starrh was placing hives in such large numbers that
they could serve no beekeeping purpose;
• Starrh was continuing to expand its placement of hives
near and on the same land as McDonald's hives for the
2016 season; and
• "Starrh personnel were impersonating McDonald
Apiary in order to deceive McDonald Apiary's landowners
into allowing Starrh to place its hives on their lands."
Filing 155 at 8-9. McDonald argues it could not have
possibly known by the August 2015 amendment deadline the
extent of damage caused by Starrh's actions because the
honey production season was not complete, it did not know its
business partner would refuse to come back (allegedly due to
Starrh's actions), it did not know the placement of all
Starrh's hives during the 2015 season and at that time,
and it did not know Starrh would continue its actions into
the 2016 honey season.
general, courts are encouraged to allow amendments liberally.
Shen v. Leo A. Daly Co., 222 F.3d 472, 478 (8th Cir.
2000). However, the initial question is whether McDonald
should be permitted to amend its complaint outside the
deadline provided by the scheduling order. "If a party
files for leave to amend outside of the court's
scheduling order, the party must show cause to modify the
schedule." Sherman v. Winco Fireworks, Inc., 532
F.3d 709, 716 (8th Cir. 2008). The good cause
requirement found in ...