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McDonald Apiary, LLC v. Starrh Bees, Inc.

United States District Court, D. Nebraska

November 5, 2016

MCDONALD APIARY, LLC, a Nebraska Limited Liabiity Company; Plaintiff,


          Cheryl R. Zwart United States Magistrate Judge

         Pending before me is McDonald Apiary's motion for expedited discovery. (Filing No. 194). For the reasons stated below, the motion will be granted.

         Plaintiff's 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 No. 48).

         On June 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).

         Plaintiff 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 argued:

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).

         Upon 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 Gerrard stated:

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).

         The 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. 21-24).

         After 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.[1] 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 ...

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