United States District Court, D. Nebraska
M. Bazis, United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion to Amend
Complaint (Filing No. 41), Defendant's Motion to Strike
(Filing No. 44), and Defendant's Motion to Strike Brief
(Filing No. 48). For the reasons set forth below,
Plaintiff's Motion to Amend will be granted, in part.
Defendant's Motion to Strike and Motion to Strike Brief
will be denied.
to Amend 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.
Complaint originally asserted claims for conversion and
misappropriation against Defendants Infogroup, Inc.
(“Infogroup”), Koley Jessen P.C., LLO
(“Koley Jessen”), and Blake Van Gilder
(“Van Gilder”) (collectively,
“Defendants”). The Complaint also asserted a
conspiracy claim against Infogroup and Koley Jessen, as well
as a computer fraud claim against Van Gilder. (Filing No. 1.)
By Memorandum and Order dated March 27, 2018, the Court
dismissed all claims against Infogroup and Koley Jessen. The
Court also dismissed the conversion claim against Van
Gilder. (Filing No. 40.)
respect to the conversion claim, the Court found that
Plaintiff's allegations that Van Gilder converted
Plaintiff's proprietary information by copying it to a
flash drive and sharing it with Koley Jessen and Infogroup
were insufficient to state a claim. The Court explained that
the “essence of conversion is the wrongful deprivation
of property from the rightful owner” and that there was
no indication that Defendants deprived Plaintiff of its
proprietary information. (Id.) As to the
misappropriation claim against Infogroup and Koley Jessen,
the Court found that the Complaint contained “no
factual allegations from which the Court [could]
reasonably infer that either Infogroup or Koley Jessen
knew-or had reason to know-that the alleged trade secrets
were acquired improperly.” (Id.)
requests that it be allowed to amend the Complaint to cure
deficiencies identified in the March 27, 2018 Memorandum and
Order. Specifically, Plaintiff wants to clarify
its conversion claim to assert that “a conversion
occurred because Defendants acted together to take an
electronic copy of confidential information owned by
Plaintiff, and that a conversion occurred even though
[P]laintiff retained the original electronic data.”
(Filing No. 42.) Plaintiff's briefing on the motion
states that Plaintiff “considered the legal authorities
cited by the Court, and the Court's ruling, ” but
“seeks a change in the law of Nebraska.” (Filing
request to amend the Complaint to replead its conversion
claim will be denied. Nebraska law is clear that
Plaintiff's proposed allegations that a conversion
occurred even though Plaintiff retained the original
electronic data do not state a claim. See
Zimmerman v. FirsTier Bank, N.A., 255 Neb. 410, 418,
585 N.W.2d 445, 452 (1998) (“[T]he essence of
conversion is not acquisition by the wrongdoer, but the act
of depriving the owner wrongfully of the property”)
(quotation omitted). Plaintiff's proposed amended
complaint does not allege that Plaintiff was deprived of
access to its property. Thus, allowing Plaintiff to amend the
Complaint to reassert the conversion claim would be futile.
also requests that it be permitted to amend the Complaint to
clarify its misappropriation claim. Plaintiff's proposed
amended complaint provides more detail regarding the
purported misappropriation, and it is not readily apparent
that amendment would be futile or that the amendment asserts
clearly frivolous claims. See Becker v. Univ. of
Neb., 191 F.3d 904, 908 (8th Cir. 1999)
(“Likelihood of success on the new claim or defenses is
not a consideration for denying leave to amend unless the
claim is clearly frivolous”); Gamma-10 Plastics,
Inc. v. Am. President Lines, 32 F.3d 1244, 1255
(8th Cir. 1994) (stating that a motion to amend
should only be dismissed on the merits if it asserts clearly
frivolous claims or defenses). Thus, the Court will permit
Plaintiff to file an amended pleading which reasserts this
claim, as well as the civil conspiracy claim to the extent it
relates to the alleged misappropriation.
Motion to Strike
requests that the Court strike Paragraphs 23 and 24 of the
Complaint pursuant to Federal Rule of Civil Procedure 12(f).
Rule 12(f) provides a mechanism for the Court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f).
23 and 24 of the Complaint allege that Van Gilder had work
performance issues and delineate examples of those
performance problems. Defendants argue that the paragraphs
should be stricken because the reasons for Van Gilder's
termination have no bearing on this case and that Plaintiff
is not allowed to submit character evidence to prove its
appears that Plaintiff's proposed amended complaint
removes these allegations. Because Plaintiff will be
permitted to file an amended pleading, Defendant's
request that the Court strike ...