Nekouee v. LVP Depaul LLC

Filing 33

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File First Amended Complaint 31 is GRANTED. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss 12 is DENIED as moot. Signed by Magistrate Judge Shirley Padmore Mensah on 1/3/2018. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED NEKOUEE,

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Plaintiff,
v.
LVP DEPAUL, LLC,
Defendant.

Case No. 4:17-CV-01465-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Fred Nekouee’s Motion for Leave to File First
Amended Complaint (Doc. 31). Defendant LVP DePaul, LLC has filed a memorandum in
opposition to the motion. (Doc. 32).
Plaintiff filed his initial complaint on May 8, 2017, alleging various violations of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., at a shopping plaza owned
by Defendant. Specifically, Plaintiff alleged ADA violations in the parking lot and in the interior
of a Panera Bread restaurant. At a Rule 16 Scheduling Conference held on November 9, 2017,
counsel for the parties advised the Court that the Panera Bread restaurant described in the
Complaint had been closed and its business operations had been moved to a new location. The
Court issued an initial case management order stating that all discovery in the case was stayed
pending a ruling on the motion to dismiss and stating that the parties were required to file
supplemental briefs to address how the change in location of the Panera Bread restaurant would
affect the pending motion to dismiss. In Defendant’s supplemental brief, Defendant pointed out
that because the Panera Bread restaurant described in the Complaint was no longer in operation,
Plaintiff could not show a likelihood of future injury and thus could not establish standing. Plaintiff
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also argued that all of the alleged violations related to the Panera Bread restaurant in the Complaint
were moot. In Plaintiff’s supplemental brief, Plaintiff indicated that he was seeking an inspection
of the new Panera Bread restaurant, a request Defendant opposed. On December 19, 2017, the
Court held a telephone conference with counsel for the parties to discuss the status of the pending
motion to dismiss and Plaintiff’s request for discovery.
On December 26, 2017, Plaintiff filed his Motion for Leave to File First Amended
Complaint. In the motion and attached exhibits, Plaintiff indicates that on December 20, 2017, he
visited and patronized the new Panera Bread restaurant. The proposed First Amended Complaint
omits allegations related to the no-longer-existent Panera Bread restaurant and includes allegations
of ADA violations at the new Panera Bread restaurant, as well as allegations related to the parking
lot.
Under Rule 15(a)(2) of the Federal Rule of Civil Procedure, Plaintiff may amend his
complaint “only with the opposing party’s written consent or the court's leave.” Fed. R. Civ. P.
15(a)(2). The Court “should freely give leave when justice so requires.” Id. “A district court
appropriately denies the movant leave to amend if ‘there are compelling reasons such as undue
delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of the amendment.’” Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting Moses.com Sec., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)).
The Court finds that justice requires permitting Plaintiff leave to amend his complaint. It
is undisputed that circumstances have changed since the original complaint was filed, and the
proposed First Amended Complaint addresses that change by replacing the allegations related to
the no-longer-existent Panera Bread restaurant with allegations related to the Panera Bread
restaurant that is currently in operation. The First Amended Complaint provides clarity regarding
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the issues actually in dispute in this lawsuit, which will place the Court in a better position to
develop a scheduling order, resolve discovery disputes, and evaluate dispositive motions. In
addition, this litigation is in its earliest stages, and this amendment is well within the parties’ own
jointly proposed deadline for amendment of pleadings—March 1, 2018. See Doc. 20.
In addition, Defendant has not shown any undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, futility, or undue prejudice to Defendant that would justify denying
leave to amend. The arguments Defendant offers in opposition to the motion for leave to amend
are unpersuasive. Defendant points out that in a telephone status conference with the Court on
December 19, 2017, Plaintiff’s counsel stated that he was not seeking leave to file an amended
complaint, yet Plaintiff’s counsel sought such leave a week later. However, Defendant does not
explain how Plaintiff’s counsel’s change of position prejudiced it in any way. Defendant also
points out that although Plaintiff’s counsel stated at the status conference that he was not seeking
an inspection of the new Panera Bread restaurant location, Plaintiff visited and inspected the new
Panera Bread restaurant the next day. Again, however, Defendant does not explain how those facts
prejudiced Defendant or why those facts would justify denying a request for leave to amend the
complaint.
For all of the above reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File First Amended
Complaint (Doc. 31) is GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 12) is DENIED
as moot.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of January, 2018.
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