United States District Court, D. Nebraska
JEWISH FEDERATION OF LINCOLN, Inc., A Nebraska Non-Profit Corporation; Plaintiff,
JENNIFER ROSENBLATT, and KURT KNECHT, Defendants.
Herbert J. Friedman Attorneys for Plaintiff
R. Zwart United States Magistrate Judge
Rosenblatt has filed a brief in opposition to Plaintiff's
motion for leave to file an amended complaint. (Filing No.
24). Rosenblatt argues that she was not served with
Plaintiff's motion to amend until October 29, 2018, and
therefore her brief opposing the motion was timely filed.
Even assuming that is true, for the reasons discussed below,
the court finds Plaintiff's motion to amend was properly
granted and the Amended Complaint is now the operative
argues the motion to amend should have been denied as
untimely filed, and because the Amended Complaint will be
prejudicial to her defense of the claims, is futile, and is
being pursued in bad faith.
court has not entered a case progression order for this
lawsuit As such, motions for leave to amend pleadings, and
the timing for filing such motions, are governed by Rule 15
of the Federal Rules of Civil Procedure.
to Federal Rule of Civil Procedure 15(a)(2), the court grants
leave to amend “freely . . . when justice so
[A] district court can refuse to grant leave to amend a
pleading only where it will result in undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of the amendment.
Dennis v. Dillard Dept. Stores, Inc., 207 F.3d 523,
525 (8th Cir. 2000)(internal citations omitted).
15(a) does not require a party to amend its pleading at a
particular stage in the action. See, 6 Wright, Miller &
Kane, Federal Practice and Procedure § 1488 (2d
ed.1990). And “[d]elay alone is not enough to deny a
motion to amend; prejudice to the nonmovant must also be
shown.” Doe v. Cassel, 403 F.3d 986, 991 (8th
Cir.2005.) “Mere delay is not a reason in and of itself
to deny leave to amend. There must be found some prejudice
which would result to others if leave were to be
granted.” Mercantile Trust Co. Nat'l Ass'n
v. Inland Marine Products Corp., 542 F.2d 1010, 1012
(8th Cir. 1976) (citations omitted).
deciding whether allowing an amendment will prejudice the
opposing party, the court must consider whether asserting new
claims will require expending significant additional
resources on discovery and trial preparation, or
significantly delay resolving the dispute. See, Long v.
Wilson, 393 F.3d 390, 400 (3rd Cir. 2004). Here, after
Plaintiff's complaint was filed on April 2, 2018,
Rosenblatt moved for additional time to respond on April 30,
2018, (Filing No. 7), and was ordered to file her
response on June 1, 2018. (Filing No. 8). Rather
than filing an answer, on June 4, 2018, Rosenblatt moved to
stay the lawsuit, (Filing No. 9). That motion was
denied on June 27, 2018, and Rosenblatt was ordered to file
her answer on July 5, 2018. (Filing No. 12). When
she failed to do so, Plaintiff promptly moved for entry of
default. (Filing No. 13). Rosenblatt responded by
untimely requesting additional time to file an answer,
(Filing No. 14), and then moving to strike the
motion for default judgment on July 18, 2018. (Filing No.
15). Until today, those motions were under advisement.
As such, the parties were not ordered to complete a Rule
26(f) Report, no case progression order was entered, and
discovery has not been pursued by either party.
the facts presented, the court is not convinced that adding a
new defendant to this case will cause any delay in resolving
the parties' dispute. And to the extent delay is a
factor, the need for a full decision on the merits outweighs
the risk of any resulting prejudice to Rosenblatt.
further argues that the claims against the newly added
defendant are futile; that “Plaintiff has failed to
show any evidence, establish good cause, or cause of action
as to the amendment of the complaint. Plaintiff's motion
is unsupported by any sworn statement and should be dismissed
as frivolous and futile.” (Filing No. 24, at CM/ECF
p. 3). Plaintiff was not required to submit evidence in
support of its motion to amend. Instead, under the
circumstances presented, the court considers whether the
allegations of the proposed amended complaint state a claim
for relief against the additional defendant.
the amended complaint alleges the proposed additional
defendant was aware, or in the exercise of reasonable care
should have been aware, of Rosenblatt's embezzlement of
Plaintiff's funds, and along with Rosenblatt, he
conspired to and did embezzle and fraudulently convert funds
to his own personal use. (Filing No. 23,
¶¶ 2(b) and 11). These ...