Knight v. Edelman et al

Filing 95

ORDER denying 91 Motion to Amend Complaint; denying as moot 92 Objection. Ordered by Judge Karen E. Schreier. (Schreier, Karen)

UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA TYRELL KNIGHT, Plaintiff, vs. RA YM O ND EDELMAN, sued in both his individual and official capacities; UNKNO W N NOORDHOCK, Corporal, su e d in both his individual and official capacities; CA LV I N HAYWOOD, sued in both his in divid ual and official capacities; and UNKNO W N PIPER, Sergeant, sued in both his individual and official ca p a citie s, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 4 :0 6 C V 3 0 6 5

ORDER DENYING PLAINTIFF'S MOTION TO AMEND COMPLAINT

Plaintiff moves to amend his complaint. Defendants oppose the motion. The motion is denied. D IS C U S S IO N Plaintiff requests that the court allow him time to amend his complaint because he has recently retained counsel. Plaintiff requests time to research an d draft a more adequate complaint. Defendants oppose plaintiff's request be cau se this case has been pending for almost three years. Defendants emphasize that plaintiff's claim is simple, the pretrial conference has already been held, and defendants have a right to a timely trial. Pursuant to Nebraska Local Rule of Practice 15.1, "[a] party who moves for leave to amend a pleading . . . shall file as an attachment to the motion an un signed copy of the proposed amended pleading." Additionally, "[t]he motion for leave to amend shall set forth specifically the amendments proposed to be

m ad e to the original pleading, state whether the motion is unopposed, and ide ntify the amendments in the proposed amended pleading."1 Here, plaintiff failed to comply with the requirements of the local rules. Plaintiff merely su bm itted a one-page document entitled motion to amend complaint. Docket 91. Within his motion, plaintiff referenced the reasons for requesting additional time to amend his complaint, but failed to attach an unsigned copy of the proposed amended pleading. Also, plaintiff did not set forth the substance of the proposed amendments, state whether the motion was unopposed, or id en tify the amendments in the proposed amended pleading. Accordingly, the cou rt finds that because plaintiff did not comply with the local rules when filing his motion to amend complaint, his motion is denied. Eve n if plaintiff had properly complied with the local rules when drafting and filing his motion to amend complaint, the court finds that plaintiff's motion w ou ld still be denied. Federal Rule of Civil Procedure 15(a)(2) governs the pretrial amendment of pleadings and states that "a party may amend its pleading only with the opposing party's written consent or the court's leave." The Rule provides that "[t]he court should freely give leave when justice so r e q u i r e s ." But parties do not have an absolute right to amend their pleading,

even under this liberal standard. United States ex rel. Lee v. Fairview Health S ys., 413 F.3d 748, 749 (8t h Cir. 2005). A district court appropriately denies the m ovant leave to amend if "there are compelling reasons such as undue delay,

Plaintiff is no longer representing himself pro se. Rather, his attorney file d the motion to amend the complaint and, therefore, the court will hold p la in tiff's attorney accountable for knowledge of the local rules.

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bad faith or dilatory motive, repeated failure to cure deficiencies by amendments p re viou sly allowed, undue prejudice to the non-moving party, or futility of the amendment." Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8t h Cir. 2005) (internal quotations omitted). H ere , plaintiff filed his original complaint on March 24, 2006, and his m otion to amend nearly three years later and just three weeks before trial. Given this delay and the fact that plaintiff has not notified the court as to what h e will include in his amended complaint, the court finds that allowing the am e nd m en t would unduly delay the litigation. Significantly, the discovery and motions deadlines have passed, and a pretrial conference has been conducted, which clarified the issues raised by the case, determined potential witnesses, and identified the parties' exhibits. The trial is set to commence in approxim ately two weeks on March 24, 2009. Further, the court finds that allow ing plaintiff to amend his complaint will unduly prejudice defendants be cau se defendants would not have time to adequately prepare to respond to an y new allegations at trial which is scheduled to commence in two weeks. Accordingly, it is hereby ORDERED that plaintiff's motion to amend complaint (Docket 91) is d e n ie d . Dated March 9, 2009. BY THE COURT:

/s/ Karen E. Schreier K A R E N E. SCHREIER U N I TE D STATES DISTRICT JUDGE

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