Federal Deposit Insurance Corporation v. Backhaus et al

Filing 112

ORDER granting 98 MOTION for Leave to File First Amended Third-Party Complaint filed by Gary L Evans, Michael W Dosland, Jon G Cleghorn, Barry E Backhaus, Charles D Terlouw, Arlene T Curry, Michael S Moderski, Ronald A Jorgenson. The Clerk shall detach the proposed amendment from the motion and docket it under seal as the defendants' first amended third-party complaint and jury demand in this action. Parties shall file supplemental briefs concerning 63 MOTION to Dismiss. United States supplemental brief due by 1/22/2015. Defendants responsive supplemental brief due by 2/5/2015. United States supplemental reply brief due 2/13/2015. Signed by Magistrate Judge Leonard T Strand on 1/7/15. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER OF
VANTUS BANK,
Plaintiff,

No. C13-4046-MWB

MICHAEL W. DOSLAND, et al.,

ORDER

vs.

Defendants,
vs.
THE UNITED STATES OF AMERICA,
Third-Party Defendant.
____________________
This case is before me on a motion (Doc. No. 98) by defendants and third-party
plaintiffs Michael W. Dosland, Michael S. Moderski, Arlene T. Curry, Barry E.
Backhaus, Gary L. Evans, Ronald A. Jorgensen, Jon G. Cleghorn, and Charles D.
Terlouw (collectively, the defendants) for leave to amend their third-party complaint
against The United States of America (United States). The United States has filed a
resistance (Doc. No. 101) and the defendants have filed a reply (Doc. No. 107). No
party has requested oral argument and, in any event, I find that the issues have been
sufficiently addressed by the parties’ written arguments such that oral argument is not
necessary. N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.

The motion to amend is timely, as it was filed on December 2, 2014, the deadline
for such motions. Doc. No. 79 at 2. Moreover, the proposed amendment (Doc. No.
98-2) does not include new claims against the United States. Instead, it expands upon
and modifies various factual allegations concerning the only claim set forth in the original
third-party complaint.

The United States’ sole argument against allowing the

amendment is that it would be futile, meaning it could not survive a Rule 12 motion to
dismiss. See In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007);
Van Stelton v. Van Stelton, 904 F. Supp. 2d 965, 969 (N.D. Iowa 2012).
Here, conveniently enough, a fully-briefed Rule 12 motion to dismiss the thirdparty complaint is already pending.

See Doc. Nos. 63, 102, 111.

Under these

circumstances, it would make no sense to conduct a futility analysis concerning the
proposed amended complaint. As such, I find that the motion (Doc. No. 98) for leave
to amend should be granted, as follows:
1.

The Clerk shall detach the proposed amendment (Doc. No. 98-2) from the

motion and docket it under seal1 as the defendants’ first amended third-party complaint
and jury demand in this action.
2.

The United States’ pending motion to dismiss (Doc. No. 63) shall be

deemed to apply to the first amended third-party complaint. Thus, no new responsive
motion or pleading is required.

However, the parties shall file supplemental briefs

concerning the motion to dismiss, addressing the effect (if any) that the amended pleading
has on the pending arguments. The following schedule will apply:
a.

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The United States shall file its supplemental brief on or before
January 22, 2015.

The first amended complaint must be filed and maintained under seal pursuant to the
confidentiality order in this case for the reasons set forth in the unresisted motion (Doc. No. 99)
that was granted by order (Doc. No. 100) filed December 3, 2014.
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b.

The defendants shall file their responsive supplemental brief on or
before February 5, 2015.

c.

The United States may file a supplemental reply brief on or before
February 13, 2015.

IT IS SO ORDERED.
DATED this 7th day of January, 2015.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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