United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
matter is before the court on Plaintiff Melanie Davis'
Motion for Leave to Amend Her Complaint. (Filing No.
60). Defendant Ak-Sar-Ben Village opposes the motion.
For the reasons that follow, the motion will be denied.
filed her initial Complaint against Defendant on March 3,
2018 and after Defendant moved to dismiss for lack of subject
matter jurisdiction, filed an amended complaint on June 5,
2018. (Filing Nos. 1 and 22). On June 19, 2018, Defendant
filed a Motion to Dismiss arguing that by fixing its parking
lot, it vitiated Davis' standing to sue and mooted this
case. The motion was denied. (Filing No. 49)
Defendant's answer to the Amended Complaint was filed on
February 21, 2019, and a progression order was entered on
March 26, 2019. Davis's motion to amend the amended
complaint was filed on May 15, 2019. (Filing No. 60)
time for filing an amended pleading as a matter of course has
run (Fed. R. Civ. P. 15(a)(1)), thus, this matter is
governed by Fed. R. Civ. P. 15(a)(2), which
In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's
leave. The court should freely give leave when justice so
general, courts are encouraged to allow amendments liberally.
(See Shen v. Leo A. Daly Co., 222 F.3d 472, 478 (8th Cir.
2000). However, the right to amend a complaint is not
absolute or without limits. See Sherman v. Winco
Fireworks Inc., 532 F.3d 709 (8th Cir. 2008). The Eighth
Circuit Court of Appeals has discussed the circumstances
under which an amendment may be denied.
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), quoting
Foman v. Davis, 371 U.S. 178 (1962).
decision on whether to allow a party to amend its complaint
is left to the “sound discretion of the district
court.” Popoalii v. Correctional Medical Services,
512 F.3d 488 at 497 (8th Cir. 2008). “When late
tendered amendments involve new theories of recovery and
impose additional discovery requirements, appellate courts
are less likely to hold a district court abused its
discretion” in denying a motion to amend. Id.
asserts that “[t]he purpose of the Second Amended
Complaint is to make sure Defendant is on notice of all the
architectural barriers Plaintiff contends are present at the
subject premises and/or to clarify Plaintiff's
positions.” (Filing No. 60 at CM/ECF p. 2). In
support of her motion, Davis argues that this motion is
timely under the Final Progression Order (Filing No.
56), her previous complaint withstood a motion to
dismiss, and if granted, the amended complaint would avoid
“later conflict about what barriers are, or are not
properly, before the Court.” (Filing No. 60 at
CM/ECF p. 2). Davis argues that the Second Amended
Complaint would not necessitate a change in the progression
timely under the court's Rule 16 case management order,
Plaintiff's motion to amend must nonetheless be analyzed
under Rule 15. Paragraphs 17 and 39(e) of the proposed Second
Amended Complaint would add wholly new allegations that a
particular ramp was too steep. (Filing No. 60-2 at CM/ECF
p. 4). Paragraph 39(f) would add an allegation that
“6 curb ramps near parking spaces reserved as
accessible parking spaces” had ramp flares that are too
steep. (Filing No. 60-2 at CM/ECF p. 11).
Originally, Davis alleged she was deterred from visiting the
property in the future, but she now proposes to allege that
she “perceives she cannot access the premises on an
equal and independent basis.” (Filing No. 60-2
at CM/ECF p. 5, ¶ 24). As stated in the proposed Second
Amended Complaint, Davis allegedly encountered these barriers
on February 14, 2018. Plaintiff has not explained why these
additional factual allegations, known by the plaintiff when
she filed this lawsuit on March 2, 2018, were not included in
her initial complaint.
argues that significant time and expense have been spent
analyzing and addressing the issues pleaded in the Amended
Complaint and it will “undoubtedly suffer unfair
prejudice with the addition of these new claims.”
(Filing No. 61 at CM/ECF p. 3). Defendant argues
that Davis proposes a new theory in paragraph 24 which may
necessitate the need for additional motion practice and that
the proposed ...