United States District Court, D. Nebraska
REDDICK MANAGEMENT CORP., and KEVIN REDDICK, Individually and in his Official Capacity as Owner of Reddick Management Corp.; Plaintiffs,
CITY OF OMAHA, NEBRASKA, Defendant.
M. BAZIS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion for
Leave to Amend Complaint. (Filing No. 56.) For the
reasons explained below, the motion will be granted.
instituted this action on February 29, 2016, against the City
of Omaha, Nebraska, Paul Kratz, Michelle Peters and Brook
Bench, asserting an action for deprivation of constitutional
rights under 42 U.S.C. § 1983. (Filing No. 1.)
The case arises out of a public bidding process through which
Defendants solicited bids for the demolition of the Omaha
Civic Auditorium. Plaintiffs alleged that their rights to due
process and equal protection were violated by City of
Omaha's failure to follow the Small and Emerging
Businesses ordinance, Omaha, Neb., Mun. Code § 10,
August 16, 2016, the Court dismissed Plaintiffs' equal
protection claim. (Filing No. 35.) On February 6,
2017, the Court dismissed Plaintiffs' claims against
Defendants Paul Kratz, Michelle Peters and Brook Bench.
(Filing No. 51.) Therefore, the City of Omaha
(hereinafter “Defendant”) is the only defendant
remaining in this action.
seeks leave to amend their Complaint to add additional claims
against Defendant, maintaining that amendment is appropriate
because Defendant's wrongful conduct has continued,
resulting in additional damages. Under 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. However, a
party does not have an absolute right to amend and
“denial of leave to amend may be justified by undue
delay, bad faith on the part of the moving party, futility of
the amendment or unfair prejudice to the opposing
party.” Amrine v. Brooks, 522 F.3d 823, 833 (8th
Cir. 2008) (quotation and citation omitted). Defendant
opposes Plaintiffs' motion.
maintains that leave to amend should be denied because
Plaintiffs unduly delayed filing the motion and have not
shown good cause for amending pleadings beyond the date set
forth in the initial progression schedule. Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008) (“[I]f a party files for leave to amend
outside of the court's scheduling order, the party must
show cause to modify the schedule”). The deadline for
Plaintiffs to seek leave to amend was initially January 9,
2017 (Filing No. 41), but was later extended to
January 23, 2017 (Filing No. 46). During the planning
conference held on March 24, 2017, Plaintiffs' counsel
expressed his desire to file an amended pleading.
Defendant's counsel indicated that Defendant would likely
object to any such motion. In order to resolve this dispute,
the Court stayed all case progression deadlines and gave
Plaintiffs until May 30, 2017, to file a motion for leave to
amend. (Filing No. 53.) Plaintiffs filed their motion on
April 21, 2017. Defendant contends that Plaintiffs'
motion is untimely because Defendants were aware of the facts
underlying the proposed amendment prior to the expiration of
the original amended pleading deadline.
number of procedural issues have occurred in this case which
justify allowing Plaintiffs to amend at this time. On
December 15, 2016, shortly after the initial extension of the
amended pleadings deadline, a motion to dismiss (Filing
No. 47) was filed. Another motion to dismiss was filed
on February 3, 2017. (Filing No. 50.) Rulings on the
motions to dismiss were issued on February 6, 2017.
(Filing No. 51.) Following those rulings, a planning
conference was held, at which time Plaintiffs' counsel
mentioned that he was considering filing an amended pleading.
To accommodate the potential filing of the motion to amend,
the Court stayed all progression deadlines. Therefore, to
date, a final progression schedule has not been entered, and
an actual trial date has not been set.
this background, and where the case currently stands, the
Court finds that Plaintiffs have not unduly delayed in filing
the motion and have demonstrated good cause for amendment.
The Court further finds that Defendant will not be prejudiced
by allowing amendment at this time. The case is just over a
year old, a final progression schedule has not been entered,
and trial has not been scheduled. Moreover, it does not
appear that the proposed amendments will greatly expand the
scope of discovery. The additional facts and counts do not
change the nature of the suit.
points out that Plaintiffs' motion fails to comply with
NECivR 15.1(a), which requires that a motion to amend and
proposed amended pleading identify the proposed amendments.
It is apparent that Plaintiffs' motion and proposed
amended pleading were hastily drafted. The body of the motion
does not directly reference the proposed amendments. Although
a copy of the proposed amended complaint was attached to the
motion, the proposed pleading does not clearly identify the
amendments, and, as acknowledged by Plaintiffs in their reply
brief, includes several errors. Since the filing of the
motion to amend, Plaintiffs have attempted to remedy their
failure to comply with this Court's Local Rules.
Plaintiffs attached a revised proposed amended complaint to
their reply brief, which identifies the proposed amendments.
(Filing No. 61.) The Court will deem this submission
sufficient for purposes of complying with the Local Rules of
this Court in this instance. However, Plaintiffs are advised
to carefully follow the Local Rules of this Court in the
have acknowledged that the equal protection claim has been
dismissed and should not be included in their amended
pleading. Still, the revised proposed amended complaint
attached to Plaintiffs' reply brief contains references
to this cause of action, including, but not necessarily
limited to, in the introductory paragraph and paragraph 4 (as
now numbered in the proposed revised pleading). (Filing
No. 61-1.) Plaintiffs may not, through amendment,
reassert the equal protection claim. Plaintiffs will be
allowed to file an amended pleading. However, Plaintiffs are
advised to carefully edit the amended pleading to ensure that
all references to the equal protection claim have been
removed. Failure to do so will result in this claim, and all
references to it, being stricken.
for good cause shown, IT IS ORDERED:
1. Plaintiffs' Motion for Leave to Amend Complaint
(Filing No. ...