United States District Court, D. Nebraska
DALE E. BETTISWORTH, as the personal representative of the Estate of Cathy Jo Bettisworth, deceased; Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
April 19, 2019, Senior District Judge John M. Gerrard gave
plaintiff Dale E. Bettisworth “until July 18, 2019 to
obtain appointment as the Personal Representative of the
Estate of Cathy Jo Bettisworth, and seek leave to file an
amended complaint.” (Filing No. 29). On July 15, 2019,
Plaintiff filed a Motion for Leave to File an Amended
Complaint. (Filing No. 30). Plaintiff attached a document
titled “Letters of Special Administration” issued
by the Superior Court of the State of Arizona. (Filing No. 30
at CM/ECF p. 4). Plaintiff's proposed amended complaint
also seeks to add allegations supporting a claim under the
Locomotive Inspection Act.
Appointment as Personal Representative.
BNSF Railway Company (BNSF) argues that Bettisworth has been
granted only limited authority to “litigate on behalf
of decedent's estate;” his authority to release
medical records of decedent, Cathy Jo Bettisworth, has not
been substantiated. (Filing No. 31 at CM/ECF p. 4). BSNF
argues that Plaintiff's “prior failure to properly
be named as personal representative has already frustrated
discovery efforts” because BNSF has been unable to
access decedent's medical records. (Filing No. 31 at
CM/ECF p. 3-4) BNSF argues that the same “frustration
of discovery” issue still exists because Bettisworth
has not been explicitly granted authority to authorize access
to Cathy's records. (Filing No. 31 at CM/ECF p. 4).
Motion for Leave to file the amended complaint “as the
Special Administrator of the Estate of Cathy Jo Bettisworth,
deceased, ” will be granted. However, BNSF is not
barred from reasserting its objections if it experiences
difficulties obtaining decedent's medical records because
Dale E. Bettisworth, as Special Administrator, lacks
authority to authorize release of such records.
Allegations for recovery under the Locomotive Inspection
also asserts that Bettisworth's request for leave to
amend should be denied for undue delay. Specifically, it
argues that Plaintiff seeks to not only amend his Complaint
regarding his status as to decedent's estate, but also to
state a Locomotive Inspection Act claim. (Filing No. 31 at
CM/ECF p. 4).
forth in Filing No. 11, “The deadline for moving to
amend pleadings or add parties is June 29, 2018.”
Fed.R.Civ.P. 15(a)(2) provides that once the time for
pleading as a matter of course has expired, amendments to the
pleadings are allowed only with the written consent of the
opposing party or leave of the court. In 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). See, also,
Amrine v. Brooks, 522 F.3d 823 (8th Cir. 2008).
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.
proposed amended complaint includes three or more new
paragraphs (particularly paragraphs 15 through 17) asserting
facts and allegations as to a claim under the Locomotive
Inspection Act. (Filing No. 30 at CM/ECF pp. 9-10). Plaintiff
asserts that he “merely took the opportunity to bring
this Complaint into conformity with other complaints”
filed in this district with similar claims against Union
Pacific Railroad. (Filing No. 32 at CM/ECF p. 4). He asserts
the amendments add “nothing new to the action inasmuch
as a derivative cause of action, sounding under the
Locomotive Inspection Act, was pled in the original
complaint, ” and that the addition was “done more
as a service to the Defendant.” Id.
compared the initial and proposed amended complaint, the
court finds that the proposed new allegations for recovery
under the Locomotive Inspection Act would have been known and
could have been included in the original complaint, and
certainly any motion to amend could have been filed before
the deadline for doing so had expired, There has been no
showing of good cause for Bettisworth justifying leave to add
the substantive ...