United States District Court, D. Nebraska
JAMES SEVELA, as Personal Representative of the Estate of Bryce J. Bolen, deceased, on behalf of himself and all others similarly situated; Plaintiff,
KOZENY & MCCUBBIN, L.C., and JOHN DOES, Defendants.
MEMORANDUM AND ORDER
Smith Camp, Senior United States District Judge.
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.
Sevela's Motion for Partial Reconsideration, he asks the
Court to reconsider its Memorandum and Order,  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
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.
Motion to Reconsider
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.
Motion for Leave to Amend
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)).
Motion to Reconsider
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.
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