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Applied Underwriters, Inc. v. Top's Personnel, Inc.

United States District Court, D. Nebraska

April 5, 2017

APPLIED UNDERWRITERS, INC., a Nebraska Corporation; Plaintiff,
v.
TOP'S PERSONNEL, INC., A New Jersey Corporation; Defendant.

          ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         This matter is before the court on Defendant Top's Personnel Inc.'s ("Top's Personnel") Motion to Extend or in the alternative, Motion to Amend. (Filing No. 49). For the following reasons, Defendant's motion to amend is granted.

         BACKGROUND

         On March 3, 2016, Plaintiff Applied Underwriters, Inc. ("Applied Underwriters") filed an amended complaint against Top's Personnel alleging that Top's Personnel failed to make the required payments on a promissory note ("the Note") entered into by the parties. (Filing No. 23). Specifically, the complaint alleges

5. Top's Personnel has failed to make the required payments under the Note and Applied has made written demand on Top's Personnel for payment of the outstanding principal and interest due.
6. Top's Personnel has have [sic] failed, refused, and neglected to pay the Note, and there is currently due after all credits $126, 488.45 plus accruing per diem interest.

(Filing No. 23 ¶¶ 5 & 6 at CM/ECF p. 2). Top's Personnel filed its answer on June 30, 2016 and expressly denied each of these allegations. (Filing No. 36 ¶¶ 5 & 6 at CM/ECF pj.).

         On September 26, 2016, Applied Underwriters served its Requests for Admissions requesting Top's Personnel admit the following:

1. Admit that Defendant has failed to make the required payments under the May 15, 2014 Promissory Note
2. Admit that Plaintiff has made written demand on Defendant for payment of the outstanding principal and interest due under the May 15, 2014 Promissory Note.
3. Admit that Defendant owes Plaintiff $126, 488.45 under the May 15, 2014 Promissory Note along with accruing interest.

(Filing No. 52-1 at CM/ECF p. 4). On November 30, 2016 Top's Personnel served its responses denying each of Applied Underwriters' requests for admission. (Filing No. 52-1 at CM/ECF p. 9). Thereafter on December 9, 2016 Plaintiffs counsel sent a letter to Top's Personnel stating that pursuant to the Federal Rules of Civil Procedure the requests for admission were deemed admitted as Top's Personnel failed to provide a timely response. (Filing No. 52-1 at CM/ECF p. 11).

         The undersigned conducted a telephonic conference with counsel discussing ongoing discovery disputes on December 22, 2016. The undersigned instructed Top's Personnel to file a motion regarding the instant dispute by January 17, 2017. The undersigned also instructed the parties to file any motions to compel by the same deadline.

         On December 29, 2016, the defendant sent a meet-and-confer letter to Plaintiffs counsel. (Filing No. 52-1 at CM/ECF p. 16). Plaintiff responded by letter on January 6, 2017, indicating that it would not stipulate to deeming Defendant's responses valid until it received Defendant's response to Plaintiff's own meet-and-confer letter (Filing No. 52-1 at ...


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