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Jewish Federation of Lincoln Inc. v. Rosenblatt

United States District Court, D. Nebraska

December 4, 2018

JEWISH FEDERATION OF LINCOLN, Inc., A Nebraska Non-Profit Corporation; Plaintiff,


          Herbert J. Friedman LAW OFFICES, PC, L.L.O. Attorneys for Plaintiff



         Defendant 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 pleading.


         Rosenblatt 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.

         The 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. Pursuant to Federal Rule of Civil Procedure 15(a)(2), the court grants leave to amend "freely . . . when justice so requires."

[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).

         Rule 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).

         When 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 Plaintiffs complaint was filed on April 2, 2018, [1] 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.

         Under 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.

         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.

         Here, 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, ΒΆΒΆ 2(b) and 11). These ...

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