United States District Court, D. Nebraska
JUDDS BROTHERS CONSTRUCTION CO., a Nebraska Corporation; Plaintiff,
MERSINO DEWATERING, INC., a Michigan Corporation; Defendant.
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Motion for Leave to Amend
Complaint (Filing No. 99) filed by Plaintiff, Judds
Brothers Construction Co. (“Judds”), which is
opposed by Defendant, Mersino Dewatering, Inc.,
(“Mersino”). The Court will deny the motion.
lawsuit concerns Judds' allegations that Mersino failed
to dewater a sewer project site in accordance with the
parties' contract. Judds commenced this action in state
court on November 24, 2015, and Mersino removed the action to
this Court on January 4, 2016. (Filing No. 1).
Judds' Complaint contains five Claims against Mersino:
breach of contract (Claim I); negligence (Claim II); breach
of implied warranty of fitness for a particular purpose
(Claim III); breach of express warranty of fitness for a
particular purpose (Claim IV); and unjust enrichment (Claim
V). (Filing No. 1 at pp. 10-13). Mersino
counter-claimed for breach of contract and quantum meruit.
(Filing No. 7).
March 14, 2016, the Court entered an initial progression
order setting April 11, 2016, as the deadline to file
“[a]ny motion to amend pleadings[.]” (Filing
No. 14). Written discovery closed on August 31, 2016,
and the deposition deadline was January 30, 2017. (Filing
No. 33; Filing No. 53). After discovery closed,
Mersino moved for summary judgment (Filing No. 60),
and on May 26, 2017, Chief Judge Smith Camp entered a
Memorandum and Order dismissing all of Judds' claims
except Claim I for breach of contract. (Filing No. 87 at
with respect to Judds' breach of contract claim, Judge
Smith Camp concluded, “A triable issue of fact exists
as to whether Mersino's Second Proposal for a well-point
system, and Mersino's advice to Judds regarding continued
use of the well-point system, violated the implied duty to
perform the contract with care, skill, reasonable expedience,
and faithfulness, ” and that questions of material fact
existed regarding Mersino's “potential concealment
or bad faith” with respect to the delay clause.
(Filing No. 87 at pp. 15-16). Mersino's motion
for summary judgment as to its counter-claims was also
denied. (Filing No. 23 at p. 23). Mersino has moved
for reconsideration of the Memorandum and Order, which motion
is pending before Judge Smith Camp. (Filing No. 92).
after the summary judgment ruling, Magistrate Judge F.A.
Gossett held a final pretrial conference with the parties on
May 31, 2017. After the Court granted the parties an
extension to revise their final pretrial documents, the Order
on Final Pretrial Conference was entered on June 27, 2017.
(Filing No. 95). Two weeks later, Judds filed the
instant motion to amend its Complaint, seeking to clarify its
allegations that Mersino expressly breached the contract when
Mersino failed to “provide additional systems, if
needed, at additional cost” and to add examples and
describe “in detail” “the numerous ways in
which Mersino breached the common law duty of care, skill,
reasonable expediency and faithfulness.” (Filing
No. 99 at pp. 2-3). Trial is set to commence on
September 19, 2017.
Judds requests leave to amend its complaint, once the final
pretrial conference has been held and a final pretrial order
entered, the final pretrial order “supersedes all
previous pleadings and controls the subsequent course of
action[.]” United States v. $84, 615 in U.S.
Currency, 379 F.3d 496, 499 (8th Cir. 2004); see
Hartman v. Workman, 476 F.3d 633, 635 n. 3 (8th Cir.
2007) (“The issues identified in the Pretrial Order
supersede any issues raised in the Complaint[.]”).
Therefore, the Court will construe Judds' motion to amend
its complaint as a motion to amend the final pretrial order,
which is now the operative pleading.
final pretrial conference and order ‘measure[ ] the
dimensions of the lawsuit, ' including the issues to be
tried.” Friedman & Friedman, Ltd. v. Tim
McCandless, Inc., 606 F.3d 494, 498 (8th Cir.
2010)(quoting $84, 615 in U.S. Currency,
379 F.3d at 499). The final pretrial conference is critical
for “promoting efficiency and conserving judicial
resources by identifying the real issues prior to trial,
thereby saving time and expense for everyone.”
Fed.R.Civ.P. 16 Advisory Committee Note (1983 Amendment to
subdivision (c)). “The court may modify the order
issued after a final pretrial conference only to prevent
manifest injustice.” Fed.R.Civ.P. 16(e).
entered following Rule 16 conferences are not lightly
disturbed, ” and “will be modified only if there
is no substantial injury or prejudice to the opponent.”
$84, 615 in U.S. Currency, 379 F.3d at 499
(citations and internal quotations omitted).
(C) of the Final Pretrial Order in this case consists of
nearly thirty pages of Controverted and Unresolved issues
identified by the parties. Included amongst Judds' claims
under this section are (1) whether Mersino breached the
contract by failing to perform in accordance with the common
law duty of care (and several ways in which Mersino allegedly
breached its common law duty) and (2) whether Mersino
breached the contract when it did not propose additional
dewatering systems. (Filing No. 95 at pp. 5-7, 12).
Judds' claims in the final pretrial order already
encompass what it seeks to add by way of an amended
complaint. Moreover, in the final pretrial order, Mersino
noted and preserved its objections to Judds' claims,
including Mersino's arguments that Judds insufficiently
pled certain claims and that the majority of Judds'
claims were dismissed/already addressed by Judge Smith
Camp's Memorandum and Order. (Filing No. 95 at pp.
5-23). The final pretrial order in this case accurately
“measures the dimensions” of the lawsuit. It
contains claims that Judds believes it has sufficiently pled
or that remain after summary judgment, and Mersino has
documented its objections to those claims. The plaintiffs
have not demonstrated that the final pretrial order should be
modified or amended to prevent manifest injustice, and the
Court is mindful that final pretrial orders “are not
lightly disturbed.” See $84, 615 in U.S
Currency, 379 F.3d at 499. Accordingly, IT IS
1. Plaintiff's Motion for Leave to Amend Complaint
(Filing No. 99) is denied.
2. Defendant's Motion for Leave to File A Sur-Reply in
Opposition to Judds Brothers' Motion for Leave to Amend
its Pleadings (F ...