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 Second Amended Complaint. (Filing No.
60.) The motion will be granted.
seeks to amend her First Amended Complaint
(“Complaint”) to add a negligence claim against
Scottsbluff Public School District No. 32 (“School
District”) under the Nebraska Political Subdivisions
Tort Claims Act (“PSTCA”) for the School
District's alleged failure to protect her from acts of
sexual abuse. Plaintiff also seeks to make other amendments
to her Complaint to reflect new facts and clarify
allegations. The Initial Progression Order required that all
motions to amend pleadings be filed on or before July 20,
2018. (Filing No. 32.) Thus, this motion was timely
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).
Also, “[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.” Popoalii v. Corr. Med.
Servs, 512 F.3d 488, 497 (8th Cir. 2008).
Whether to grant a motion for leave to amend is within the
sound discretion of the district court. Id.
School District argues that amendment would be futile because
Plaintiff's proposed negligence claim is untimely under
the PSTCA. The PSTCA provides:
Every claim against a political subdivision permitted under
the [PSTCA] shall be forever barred unless within one year
after such claim accrued the claim is made in writing to the
governing body. Except as otherwise provided in this section,
all suits . . . shall be forever barred unless begun within
two years after such claim accrued.
Neb. Rev. Stat. § 13-919(1). Nebraska law
provides the following with respect to time requirements for
notice under the PSTCA:
[I]f a person entitled to bring any action mentioned in
Chapter 25, the [PSTCA] . . . except for a penalty or
forfeiture, for the recovery of the title or possession of
lands, tenements, or hereditaments, or for the foreclosure of
mortgages thereon, is, at the time the cause of action
accrued, within the age of twenty years . . ., every such
person shall be entitled to bring such action within the
respective times limited by Chapter 25 after such disability
is removed. For the recovery of the title or possession of
lands, tenements, or hereditaments or for the foreclosure of
mortgages thereon, every such person shall be entitled to
bring such action within twenty years from the accrual
thereof but in no case longer than ten years after the
termination of such disability. Absence from the state,
death, or other disability shall not operate to extend the
period within which actions in rem are to be commenced by and
against a nonresident or his or her representative.
Neb. Rev. Stat. § 25-213. The School District
states that PSTCA timing requirements are tolled until a
person turns twenty-one years old and argues that Plaintiff
did not submit written notice of her claim until November 22,
2017, approximately two years after the PTSCA deadline.
argues, however, that her claim is timely because the
limitations period was extended by Neb. Rev. Stat. §
25-228. Plaintiff asserts that § 25-228 provides a
special statute of limitations for victims of sexual abuse or
assault for claims arising under the PSTCA. This section
generally states that notwithstanding any other provision of
law, a suit against any entity other than the individual
directly perpetrating a sexual assault, may be brought within
twelve years after the plaintiff's twenty-first birthday.
Neb. Rev. Stat. §25-228.
considered the matter, the Court will allow Plaintiff to file
a second amended complaint. The parties' dispute focuses
on which statute of limitations is applicable to
Plaintiff's claims. 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); American Aerial Services,
Inc v. Terex USA, LLC, No. 2:12-CV-00361, 2013 WL
1898541, *1 (D. Me. May 7, 2013) (“[A] motion to amend
is not a proper vehicle for this Court to resolve an open
question of state law”). The question of the applicable
limitations period should not be decided through a motion to
IS ORDERED that Plaintiff's Motion for Leave to
File Second Amended Complaint (Filing No. 60) is
granted. Plaintiff shall file ...