United States District Court, D. Nebraska
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation, and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
SUPERVALU INC., a Delaware corporation, Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff/Counter Defendant,
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants/Third-Party Plaintiffs/Counter Plaintiffs,
TREVOR BOROWIAK, Third Party Defendant.
Gossett United States Magistrate Judge.
matter comes before the Court on the Motion to Amend
Pleadings in the Member Case (Filing No. 45) filed
by the plaintiffs, Affiliated Foods Midwest Cooperative, Inc.
(“AFM”) and Associated Wholesale Grocers
(“AWG”). The Court will grant the motion.
action concerns AFM/AWG's allegations that the defendant,
SUPERVALU INC. (“Supervalu”), tortiously
interfered with a supply agreement between AFM and Borowiak
IGA Foodliner, Inc. (“Borowiak IGA”). AFM's
initial Complaint contains two “Counts” against
Supervalu: (1) tortious interference with contract, alleging
Supervalu attempted to induce Borowiak IGA to breach the
supply agreement, and (2) tortious interference with business
relations, alleging Supervalu attempted to induce Borowiak
IGA to discontinue its relationship with AFM. (Filing No.
1). The initial Complaint prayed for injunctive relief
and an award of actual damages. (Filing No. 1 at pp. 12-13).
requests leave to file an Amended Complaint that contains the
same two “Counts” as the initial Complaint, but
adds to its prayer for relief a request for costs and
reasonable attorneys' fees, and removes its prayer for
injunctive relief. (Filing No. 46-2 at p. 13). The Amended
Complaint sets forth an additional “Count III”
for “Injunctive Relief, ” alleging that Supervalu
“intentionally and unjustifiably interfere[d]”
with the contract and business relationship between Borowiak
IGA and AFM/AWG. Count III requests a judgment enjoining
Supervalu from supplying Borowiak IGA stores with grocery
products during the term of the supply agreement and to
“un-tag” Borowiak IGA stores. (Filing No. 46-2 at
Federal Rule of Civil Procedure 15, the Court should
“freely give leave” to amend a pleading
“when justice so requires.” Fed.R.Civ.P. 15(a).
Nevertheless, a party does not have an absolute right to
amend, and “[a] district court may 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.” Reuter v. Jax Ltd., Inc., 711 F.3d
918, 922 (8th Cir. 2013) (internal quotation and citation
omitted). The court has substantial discretion in ruling on a
motion for leave to amend under Rule 15(a)(2). Wintermute
v. Kansas Bankers Sur. Co., 630 F.3d 1063, 1067 (8th
opposes the instant motion to amend solely on the grounds of
futility of the proposed amendments adding a prayer for
attorneys' fees and a “claim” for injunctive
relief. Supervalu does not otherwise oppose the Amended
Complaint. (Filing No. 47 at pp. 2-3).
to amend “may be denied if an amendment would be
futile.” Stricker v. Union Planters Bank,
N.A., 436 F.3d 875, 878 (8th Cir. 2006). Denial of a
motion for leave to amend on the basis of futility
‘means the district court has reached the legal
conclusion that the amended complaint could not withstand a
motion to dismiss under [Fed. R. Civ. P.
12(b)(6)].'” Zutz v. Nelson, 601 F.3d 842,
850 (8th Cir. 2010) (quoting Cornelia I. Crowell GST
Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir.
contends that AFM/AWG's amended prayer for an award of
attorneys' fees is futile because attorneys' fees are
not legally recoverable under Nebraska law in this tort
action, and thus would not survive a motion to dismiss.
However, prayers for relief generally are not appropriate
subject matter for dismissal under Fed.R.Civ.P. 12(b)(6).
JS IP, LLC v. LIV Ventures, Inc., No. 8:11CV424,
2012 WL 2871794, at *9 (D. Neb. July 12, 2012) (citing
Kansas-Nebraska Natural Gas Co. v. City of Hastings,
Neb., 10 F.R.D. 280, 281 (D. Neb. 1950); see,
Winkler v. Price, No. 8:13CV52, 2013 WL 3776540, at
*2 (D. Neb. July 17, 2013) (denying motions to dismiss
despite defendants' argument that the plaintiff's
claim for attorney fees should be dismissed or stricken
because attorney fees are not recoverable under Nebraska
law). Because the request for attorneys' fees is not
appropriate subject matter for a 12(b)(6) motion to dismiss,
the Court cannot conclude in this early stage of the
proceedings that the amendment is futile.
next argues Count III of the Amended Complaint asserting a
“claim” for injunctive relief is futile because
an injunction is a remedy, not a separate cause of action,
and thus would not survive a 12(b)(6) motion to dismiss. It
is well-settled that, “[N]o independent cause of action
for injunction exists.” Plan Pros, Inc. v.
Zych, No. 8:08CV125, 2009 WL 928867, at *2 (D. Neb. Mar.
31, 2009); see also, Henke v. Arco Midcon, L.L.C.,750 F.Supp.2d 1052, 1059-60 (E.D. Mo. 2010)
(“Injunctive relief . . . is a remedy, not an
independent cause of action.”); Christensen v.
PennyMac Loan Servs., LLC,988 F.Supp.2d 1036, 1046 (D.
Minn. 2013) (“The claim for injunctive relief is a
request for a remedy, not a separate cause of
action.”). The Court agrees with Supervalu that, to the
extent Count III purports to be an independent cause of
action for “injunctive relief, ” it would not
survive a motion to dismiss under Rule 12(b)(6). However,
that is not to say the plaintiffs cannot request injunctive
relief as a remedy for their other independent claims. See,
e.g., Motley v. Homecomings Fin., LLC, 557 F.Supp.2d
1005, 1014 (D. Minn. 2008) (permitting plaintiffs to seek
injunctive relief for remaining claims in the complaint
despite dismissal of injunctive relief as a separate cause of
action); Henke, 750 F.Supp.2d at 1060
(“Plaintiffs may seek injunctive relief as part of
their prayer for relief in another claim, but this remedy
cannot stand as separate causes of action.”). Despite
being pled as a separate “Count, ” liberally
construing the Amended Complaint, the Court concludes the