United States District Court, D. Nebraska
ORDER
ROBERT
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE
This
matter is before the Court on plaintiff Rudy Butch
Stanko's (“Stanko”) Motion for Leave to File
Amended Complaint (Filing No. 15). Stanko filed his Motion
for Leave on April 5, 2017. Two days before that, this Court
dismissed Stanko's Complaint against defendants Bosselman
Enterprises and Paul Riggs (collectively,
“defendants”) for failing to state a plausible
claim for relief. See Fed. R. Civ. P. 12(b)(6). In
particular, the Court determined Stanko failed to show (1)
state action as required to support his First Amendment and
42 U.S.C. § 1985(3) claims and (2) the requisite
contractual relationship or discriminatory animus to support
any 42 U.S.C. § 1981 claim. The Court entered judgment
the same day.
Stanko
filed the present Motion for Leave pursuant to Federal Rule
of Civil Procedure 15. “Whether to grant a motion for
leave to amend is within the sound discretion of the
court.” Becker v. Univ. of Neb. at Omaha, 191
F.3d 904, 908 (8th Cir. 1999). Under Rule 15(a)(2),
“the court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). However,
“plaintiffs do not have an absolute or automatic right
to amend.” U.S. ex rel. Lee v. Fairview Health
Sys., 413 F.3d 748, 749 (8th Cir. 2005). And this Court
is “not required to engage in a guessing game” as
to the proposed amendments. Meehan v. United Consumers
Club Franchising Corp., 312 F.3d 909, 914 (8th Cir.
2002).
The
Court may also deny “leave to amend if ‘there are
compelling reasons such as 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 the amendment.'”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715
(8th Cir. 2008) (quoting Moses.com Sec., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065
(8th Cir. 2005)); accord In re Charter Commc'ns,
Inc., Sec. Litig., 443 F.3d 987, 993 (8th Cir. 2006)
(“Denial of a motion to amend on [the ground that an
amended pleading would be futile], particularly a motion
filed after the district court's final ruling, is not an
abuse of discretion.”). “Some examples of futile
claims are ones that are duplicative or frivolous, or claims
that could not withstand a motion to dismiss under Rule
12(b)(6).” Silva v. Metro. Life Ins. Co., 762
F.3d 711, 719 (8th Cir. 2014) (internal marks and citations
omitted) (quoting Zutz v. Nelson, 601 F.3d 842, 850
(8th Cir. 2010)).
In
moving for leave to amend, Stanko has not complied with the
local rules regarding such motions nor otherwise
explained-even in simple terms-how any proposed pleading
would cure the substantial deficiencies in his Complaint.
Under Nebraska Civil Rule 15.1(a),
A party who moves for leave to amend a pleading (including a
request to add parties) must file as an attachment to the
motion an unsigned copy of the proposed amended pleading that
clearly identifies the proposed amendments. Except as stated
in these rules or court order, the proposed amended pleading
must be a complete pleading that, if allowed to be filed,
supersedes the original pleading in all respects; no part of
the prior pleading may be incorporated into the proposed
amended pleading by reference. The motion for leave to amend
must (1) specifically state the proposed amendments and (2)
state whether the motion is unopposed or opposed, after
conferring with opposing parties.
Stanko
has not attached a proposed amended complaint, stated his
proposed amendments, or indicated whether he conferred with
the defendants about any opposition to such a motion.
What's more, Stanko impermissibly leaves the Court to
guess at what his proposed amendments might be. See
Meehan, 312 F.3d at 914.
In his
Motion for Leave, Stanko simply states “[t]he case is
in the beginning stages” and that he has identified
some of the unknown defendants. “[A] party is not
entitled to amend a complaint without making a showing that
such an amendment would be able to save an otherwise
meritless claim.” Plymouth Cnty., Iowa v. Merscorp,
Inc., 774 F.3d 1155, 1160 (8th Cir. 2014); see also
Frentzel v. Boyer, 297 F. App'x 576, 578 (8th Cir.
2008) (unpublished per curiam) (concluding “the
district court did not abuse its discretion” in denying
a motion to amend “because the amendment would have
been futile as [the plaintiff] could not establish a
constitutional violation”).
“Given
[Stanko's] failure to communicate the substance of h[is]
proposed amendments, ” the Court finds no compelling
reason to grant Stanko's post-dismissal motion for leave
to amend. Fairview Health Sys., 413 F.3d at 750
(affirming the denial of leave to amend where the plaintiff
did not attach an amended pleading as required by local rule
and did not “detail the substance of her amendment or
delineate which new claims she would assert”);
accord Dudek v. Prudential Securities, Inc., ...