United States District Court, D. Nebraska
M. Bazis United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion for
Leave to File a Third-Amended Complaint (Filing No.
70) and Defendant's Motion for Protective Order.
(Filing No. 72.) For the reasons set forth below,
the motions will each be denied.
2010, TKO Boxing Promotions, LLC (“TKO”) and
Defendant Terence Crawford (“Crawford”) entered
into an agreement under which TKO was to promote and stage
boxing bouts involving Crawford. On June 30, 2011, TKO and
Top Rank entered into an Agreement and Release concerning
Crawford's promotional rights. The Agreement and Release
provided that “[f]or each Title Defense . . . of
[Crawford's] promoted by Top Rank pursuant to the
Promotional Rights Agreement, TKO shall be paid a fee equal
to eight percent (8%) of the purse payable to [Crawford] for
such Title Defense.” (Filing No. 52.) Top Rank and
Crawford entered into a Promotional Rights Agreement in June,
2011. In September, 2014, Top Rank and Crawford entered into
another promotional rights agreement (the “Exclusive
Restated Promotional Rights Agreement”), under which
Top Rank would continue to provide promotional services for
January 10, 2017, Plaintiff filed this suit alleging that Top
Rank breached the Agreement and Release. (Filing No.
1.) To date, Plaintiff has filed two amended complaints
without opposition. The Second Amended Complaint, which was
filed on September 1, 2017, asserts causes of action for (1)
breach of contract; (2) breach of implied covenant of good
faith and fair dealing; (3) accounting; and (4) declaratory
judgment. (Filing No. 52.) The deadline for filing
amended pleadings was May 31, 2017. (Filing No. 26.)
Rank filed a Motion for Summary Judgment on December 29,
2017, seeking a judicial determination regarding the duration
of the Agreement and Release. The Motion for Summary Judgment
is currently pending before the Court.
to File Third-Amended Complaint
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. Nevertheless, 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).
Whether to grant a motion for leave to amend is within the
sound discretion of the district court. Popoalii v. Corr.
Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
“where a party seeks leave to amend after a scheduling
order deadline, that party must first demonstrate good cause
under Rule 16(b) of the Federal Rules of Civil Procedure
before the court can consider whether the proposed amendments
are proper under Rule 15(a).” BDC Farms, Inc. v.
Certified Angus Beef, LLC, No. 8:08CV25, 2007 WL2344814,
*3 (D. Neb. Aug. 14, 2007) (quotation omitted). “The
primary measure of Rule 16's good cause standard is the
moving party's diligence in attempting to meet the case
management order's requirements.” Bradford v.
DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001).
“[I]f the reason for seeking the amendment is apparent
before the deadline and no offsetting factors appear, the
Rule 16 deadline must govern.” Financial Holding
Corp. v. Garnac Grain Co., 127 F.RD. 165, 166 (W.D. Mo.
seeks to add a fraudulent misrepresentation claim against Top
Rank. The proposed amendment alleges that Top
Rank induced Plaintiff to “bring Crawford to Top Rank
and allow Top Rank to sign Crawford to a Promotional Rights
Agreement which would allow Top Rank to promote
Crawford's boxing career.” (Filing No. 77 at
CM/ECF p. 21.) Plaintiff alleges that “Top Rank
promised [Plaintiff] that as long as Crawford was promoted by
Top Rank, Top Rank would pay [Plaintiff] an amount totaling
8% of Crawford's purse every time Crawford fought a world
title defense fight.” (Id.) Plaintiff contends
that these representations were false and made fraudulently.
argues that it learned of facts supporting the proposed
fraudulent misrepresentation claim when it deposed Top
Rank's President, Todd duBoef, on September 14, 2017.
Plaintiff seemingly maintains that Mr. duBoef's testimony
demonstrates that Top Rank entered into the Exclusive
Restated Promotional Rights Agreement with Crawford in 2014
because Plaintiff refused to restructure the 8% fee under the
2011 Agreement and Release. Plaintiff apparently contends
that this information supports the conclusion that Top Rank
fraudulently mispresented facts in order to convince TKO
(whose rights were later assigned to Plaintiff) to allow Top
Rank to sign a promotional rights agreement with Crawford in
Court concludes that Mr. duBoef's testimony did not
elicit newly discovered facts which justify allowing
Plaintiff to file an amended pleading alleging a fraudulent
misrepresentation claim at this time. Mr. duBoef's
deposition testimony only provides information as to why Top
Rank may have decided to execute a revised promotional rights
agreement with Crawford. This testimony does not tend to show
that Top Rank made fraudulent misrepresentations in 2011 when
Plaintiff/TKO allowed Top Rank to enter into the initial
promotional rights agreement with Crawford. Mr. duBoef's
testimony relates to events that occurred long after the
execution of the Agreement and Release. Therefore, Plaintiff
has not identified any newly discovered facts that relate to
the execution of the Agreement and Release. Because Plaintiff
has failed to demonstrate good cause warranting amendment at
this time, the Motion for Leave to File a Third-Amended
Complaint will be denied.
Motion for Protective Order Concerning the Deposition ...