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Sevela v. Kozeny & McCubbin, L.C.

United States District Court, D. Nebraska

July 12, 2019

JAMES SEVELA, as Personal Representative of the Estate of Bryce J. Bolen, deceased, on behalf of himself and all others similarly situated; Plaintiff,
v.
KOZENY & MCCUBBIN, L.C., and JOHN DOES, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Senior United States District Judge.

         This matter is before the Court on the Plaintiff James Sevela's Motion for Partial Reconsideration, ECF No. 46, and Motion for Leave to File Second Amended Complaint, ECF No. 48. For the reasons stated below, the Motion for Partial Reconsideration will be denied and the Motion for Leave to File Second Amended Complaint will be granted, in part.

         BACKGROUND

         In Sevela's Motion for Partial Reconsideration, he asks the Court to reconsider its Memorandum and Order, [1] ECF No. 45, dismissing Sevela's claims under the Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1601 et seq. (“NCPA”). Specifically, Sevela challenges the Court's holding that he, in his capacity as personal representative of the Estate of Bryce J Bolen, is not a “person who is injured in his or her business or property” as required to bring an action under the NCPA.

         In Sevela's Motion for Leave to File Second Amended Complaint, he seeks leave to add four individual Defendants identified during the discovery process; restate his NCPA claim to include the allegation that he is a person under Neb. Rev. Stat. § 59-1608(2); and add language regarding the public interest, the Court's ability to provide a monetary remedy, and his alleged injury in-fact.

         STANDARD OF REVIEW

         I. Motion to Reconsider

         A motion to reconsider a nonfinal order is analyzed under Fed.R.Civ.P. 60(b). Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (Anderson v. Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003)). “Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721 (8th Cir. 2010) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988)). “They are not to be used to ‘introduce new evidence that could have been adduced during pendency' of the motion at issue.” Id. “A motion for reconsideration is also not the appropriate place to ‘tender new legal theories for the first time.'” Id. Sevela alleges a manifest error of law.

         II. Motion for Leave to Amend

         After the time for amending a pleading as a matter of course has expired, see Fed. R. Civ. P. 15(a)(1), “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Courts are directed to “freely give leave, ” but only “when justice so requires.” Id. Thus, “[a] 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) (internal quotation marks and citation omitted). A motion for leave to amend will be dismissed as futile when the “amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir.2010) (citation omitted). “When reviewing ‘a motion to dismiss an action for failure to state a claim under Rule 12(b)(6), [we] tak[e] the factual allegations in the complaint as true and afford[ ] the non-moving party all reasonable inferences from those allegations.'” Munro v. Lucy Activewear, Inc., 899 F.3d 585, 589 (8th Cir. 2018), cert. denied, 139 S.Ct. 941 (2019) (quoting Butler v. Bank of Am., N.A., 690 F.3d 959, 961 (8th Cir. 2012)).

         DISCUSSION

         I. Motion to Reconsider

         Sevela argues that the Court's prior holding that he does not have standing to sue under the NCPA is erroneous because 1) the decedent, Bryce J. Bolen, the addressee of the letter giving rise to the NCPA action, was a natural person, and Sevela, as personal representative of Bolen's estate, is a natural person who stands in his place, 2) the NCPA applies to any person directly or indirectly affected, and 3) the NCPA should be construed liberally.

         Sevela points to Neb. Rev. Stat. § 30-2209(33) which defines Personal Representative, for purposes of the Nebraska Probate Code as “executor, administrator, successor personal representative, special Administrator, and persons who perform substantially the same function under the law governing their status.” Pl. Br., ECF No. 47, Page ID 293 (emphasis in brief, not statute). Although the Court agrees that under Nebraska law a natural person can serve as a personal representative, this ...


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