Strickland et al v. Broome
ORDER granting in part and denying in part 71 Motion for Clarification and Other Relief. The Court grants the motion insofar as Plaintiffs seek a ruling as to whether they pleaded claims of conversion and breach of contract, but the Court denies the motion in all other respects. Signed by District Judge Keith Starrett on 4/11/18. (cb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ELIZABETH L. STRICKLAND, et al.,
CIVIL ACTION NO. 2:16-CV-124-KS-MTP
AMY ALYECE BROOME, et al.
For the reasons provided below, the Court grants in part and denies in part
Plaintiffs’ Motion for Clarification and Other Relief . The motion is granted insofar
as Plaintiffs seek a ruling from the Court as to whether they pleaded claims of
conversion and breach of contract: Plaintiffs did not plead such claims. The motion is
denied in all other respects.
The Court provided the factual background of this case in an earlier opinion. See
Strickland v. Broome, No. 2:16-CV-124-KS-MTP, 2017 WL 4707032, at *1 (S.D. Miss.
Oct. 19, 2017). Plaintiffs initiated this action on August 15, 2016. They named Amy
Alyece Broome as the lone defendant. On October 25, 2016, the Court entered a Case
Management Order  which provided, among other things, a deadline of December
15, 2016, for motions to amend the pleadings, and a discovery deadline of June 1, 2017.
On June 13, 2017 – approximately seven months past the amendments deadline
and over a week past the discovery deadline – Plaintiffs filed a motion seeking leave
to file an Amended Complaint  and add USAA as a defendant. Plaintiffs claimed
that they were unable to “determine any information concerning the . . . life insurance
coverage,” despite first receiving documents from USAA via subpoena in February
2017. In fact, Plaintiffs admitted that Defendant Broome’s discovery responses from
December 2016 identified USAA as a potential defendant. Nevertheless, the Court
allowed  Plaintiffs to amend. On June 21, 2017, Plaintiffs filed an Amended
On August 17, 2017, USAA filed a Motion to Dismiss  Plaintiffs’ claims of
breach of fiduciary duty and constructive trust. The Court granted the motion on
October 19, 2017. Strickland, 2017 WL 4707032 at *1.
On November 6, 2017, the Magistrate Judge held a status conference, and the
Plaintiffs represented that they intended to file a motion seeking the Court’s
reconsideration of the Court’s order dismissing their claims against USAA. At this
time, Plaintiffs did not mention any claims of breach of contract or conversion. Two
months later, after Plaintiffs had failed to file a motion as they represented in the
status conference, the Magistrate Judge entered an Amended Case Management Order
. Therein, the Magistrate Judge stated that the Court had dismissed Plaintiffs’
claims against USAA, and that the only claims remaining were those asserted against
One week later, Plaintiffs filed a Motion for Reconsideration  of the Court’s
order granting USAA’s Motion to Dismiss . Among other things, Plaintiffs argued
that the Court had “overlooked” claims of conversion and breach of contract that were
pleaded in the Amended Complaint as to USAA. Alternatively, Plaintiffs sought leave
to amend and assert such claims.
On March 14, 2018, the Court denied  Plaintiffs’ Motion for Reconsideration
for the same reasons it granted USAA’s Motion to Dismiss. Strickland v. Broome, No.
2:16-CV-124-KS-MTP, 2018 WL 1320053 (S.D. Miss. Mar. 14, 2018). The Court also
noted that it had not “overlooked” any claims of conversion and breach of contract. Id.
at *2. Rather, it had not addressed such claims because they were not raised in
USAA’s Motion to Dismiss. Id. The Court instructed Plaintiffs to file a separate motion
seeking leave to amend. Id. So, Plaintiffs filed a Motion for Clarification and Other
Relief , seeking clarification from the Court as to whether they pleaded claims of
conversion and breach of contract or, alternatively, seeking leave to amend.
Conversion & Breach of Contract Claims
Plaintiffs did not plead claims for conversion or breach of contract against
USAA. Plaintiffs never mentioned such claims until their specifically enumerated
claims of breach of fiduciary duty and constructive trust were dismissed. It is obvious
that Plaintiffs did not intend to assert such claims when they filed the Amended
Complaint. Rather, they are attempting to do so now to keep USAA in the case for
trial. The Amended Complaint includes a section specifically labeled “Causes of
Action Against USAA Life Insurance Company,” and it includes no mention
whatsoever of conversion or breach of contract claims. It would be wholly unreasonable
to expect Defendant – and the Court – to divine that Plaintiffs intended to assert
claims not specifically enumerated in the section of the Complaint that purports to
specifically enumerate the causes of action against USAA.
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 190 L. Ed. 2d 309 (2014), does
not require this Court to guess the nature of a plaintiff’s case. Rather, it holds that a
plaintiff need not specifically cite 42 U.S.C. § 1983 to state a claim for the violation of
constitutional rights. Id. at 347. If, as Plaintiffs argue, they were permitted to simply
list facts without any enumerated legal theories, claims, or causes of action, then
motions pursuant to Rules 12(b)(6) and 12(c) would be toothless because a respondent
could simply assert a new theory of liability ex post facto, as Plaintiffs attempted to do
here. In fact, new theories and claims could potentially be asserted all the way up to
the pretrial conference. Moreover, there would be serious implications for removal and
remand procedure if all that was required to state a federal claim were facts without
any mention of federal law or a theory of liability.
In summary, the plain language of the Amended Complaint and Plaintiffs’
actions in this litigation clearly indicate that they did not intend to assert claims of
conversion or breach of contract against USAA until their other claims were dismissed.
Therefore, the Court concludes that no such claims were pleaded in the Amended
“Rule 16(b) governs amendment of pleadings after a scheduling order deadline
has expired.” S & W Enters., LLC v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536
(5th Cir. 2003). The rule provides that a scheduling order “may be modified only for
good cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4). “The good cause
standard requires the party seeking relief to show that the deadlines cannot
reasonably be met despite the diligence of the party needing the extension.” Sw. Bell
Telephone Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003). The Court considers
four factors: “(1) the explanation for the failure to timely move for leave to amend; (2)
the importance of the amendment; (3) potential prejudice in allowing the amendment;
and (4) the availability of a continuance to cure such prejudice.” Id.
Plaintiffs have not provided any explanation as to why they did not timely seek
leave to amend. Of course, Plaintiffs may contend that they did not seek leave to
amend earlier in the case because they had already pleaded claims of conversion and
breach of contract. As explained above, Plaintiffs obviously did not intend to assert
such claims until their claims of breach of fiduciary duty and constructive trust were
dismissed. They then waited months before filing a motion seeking reconsideration 
of the Court’s order, and then a few more months before filing a motion seeking leave
to amend . This was part of a pattern of delay, as Plaintiffs first sought leave to add
USAA as a defendant  seven months past the first amendment deadline and a week
past the original discovery deadline.
The Court will assume, for the purpose of addressing the current motion, that
the proposed amendment is important. However, allowing the amendment at this late
stage of the case would be prejudicial to USAA. The final pretrial conference is
scheduled for May 15, 2018, and this case is currently scheduled for a trial calendar
beginning the first week of June 2018. Allowing Plaintiffs to assert two new claims
after discovery has been completed and the parties are preparing for trial would be
unfairly prejudicial to USAA.
It is also too late for the Court to cure any prejudice by extending the discovery
period or otherwise shifting deadlines. This case was filed in 2016, and the Court will
not continue the pretrial conference and trial calendar to reopen discovery and start
from scratch. Even if the Court were inclined to further delay the case’s resolution, it
would likely be months before the Court could find an available trial date, given the
current state of its calendar. There is no time to cure the prejudice that would accrue
to USAA if the Court permitted Plaintiffs to assert new claims.
In summary, Plaintiffs did not plead claims of breach of contract and conversion,
and they have not provided a satisfactory explanation for their failure to timely seek
leave to amend. While the proposed amendments may be important, they would
unfairly prejudice USAA, and there is no time to cure the prejudice. For all of these
reasons, the Court denies Plaintiffs’ request for leave to amend.
SO ORDERED AND ADJUDGED this 11th day of April, 2018.
/s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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