United States District Court, D. Nebraska
MCDONALD APIARY, LLC, a Nebraska Limited Liabiity Company; Plaintiff,
STARRH BEES, INC., a California Corporation; DALE ASHLEY, ANNE ASHLEY, AND JONATHAN GONZALEZ, Defendants.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
before me is McDonald Apiary's motion for expedited
discovery. (Filing No. 194). For the reasons stated
below, the motion will be granted.
complaint was initially filed in the District Court of
Sheridan County, Nebraska on October 31, 2014, and it was
removed to this forum on November 12, 2014. (Filing No.
1). The court entered a progression order on July 9,
2015, which set August 31, 2015 as the deadline for moving to
amend Plaintiff's complaint. (Filing No. 47).
Trial was scheduled to begin on October 24, 2016. (Filing
30, 2016, Plaintiff moved for leave to file an amended
complaint. The proposed amended complaint added allegations
supporting Plaintiff's previously alleged claims, and it
added a claim under the Junkins Act. As relevant to the
pending motion for expedited discovery, Starrh objected to
allowing an amended complaint, arguing:
If the Court were to allow McDonald Apiary's amendments
additional discovery would have to be allowed, and the trial
date would almost certainly have to be moved. Starrh Bees
should not be prejudiced by having to re-take depositions and
losing the trial date, at which its Counterclaims against
McDonald Apiary will also be adjudicated.
(Filing No. 151, at CM/ECF p. 33).
responded that although trial was quickly approaching, Starrh
Bees did not need discovery to respond to the proposed new
allegations: “[T]he amendments describe Starrh's
own conduct-which has been known to Starrh all along.”
(Filing No. 155, at CM/ECF p. 2). McDonald Apiary
There are no new causes of action. There are no new
defendants. These legal theories, and the importance of
location information, have been present in this case all
along. McDonald Apiary is simply now supplementing its
original Junkin Act claim, as well as its other claims, with
factual allegations based upon information it was belatedly
provided in discovery or which it very recently discovered
regarding Starrh's behavior in the placement of its hives
and its impersonation of McDonald Apiary.
(Filing No. 155, at CM/ECF pp. 18-19).
review of the record and allegations before the court, Judge
Gerrard concluded there was good cause to grant McDonald
Apiary's motion to amend. As to the issue of whether good
cause supported Plaintiff's post-deadline motion, Judge
Gerrard reasoned that McDonald Apiary could not have
reasonably met the August 31, 2015 deadline for amending: It
could not have known and alleged facts based on the 2015 and
2016 beekeeping seasons before the deadline for moving to
amend, and it acted promptly when those facts became known.
Discussing any prejudice caused by the late amendment, Judge
The parties disagree about whether discovery would have to be
reopened to investigate the new claim and additional
allegations. Regardless, even if new discovery is required,
the new allegations and claims are closely related to
already-pending issues, and do not materially alter the
nature of this case. . . . And more fundamentally, the burden
of undertaking discovery, standing alone, does not suffice to
warrant denial of a motion to amend a pleading.
(Filing No. 180, at CM/ECF pp. 4-5) (internal
citation omitted). Judge Gerrard granted Plaintiff's
motion to amend on September 14, 2016, (Filing No.
180), and Plaintiff's Third Amended Complaint was
filed on September 16, 2016. (Filing No. 181).
Third Amended Complaint adds allegations that Starrh was and
is attempting to drive McDonald Apiary, its competitor, out
of business, and in 2015 and 2016, it did so by placing an
excessive number of hives near and on the same land as
McDonald Apiary's hives for no valid business purpose.
The Third Amended Complaint alleges Starrh was and is
pursuing its unlawful, anti-competition conduct by
impersonating McDonald Apiary personnel to gain access to and
place Starrh hives on property used by McDonald Apiary for
its hive locations. (Filing No. 181, at CM/ECF pp.
the Third Amended Complaint was filed, a conference call was
promptly scheduled for September 23, 2016, to discuss any
necessary modifications to the case progression schedule.
During that conference before the undersigned magistrate
judge, both parties stated they did not want the trial
delayed. When asked about any required additional
discovery, McDonald Apiary did not identify any specific
discovery it still needed, while Starrh stated that in light
of the new ...