Infante v. The City of Hastings, Nebraska, et al

Filing 41

MEMORANDUM AND ORDER that the Plaintiff's Motion for Leave to File Second Amended Complaint (Filing No. 37 ) is denied. Defendant State of Nebraska's Objection to Plaintiff's Motion for Leave to File an Amended Complaint (Filing No. 39 ) is denied as moot. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALMA ROSA INFANTE,
Plaintiff,
v.
THE CITY OF HASTINGS, NEBRASKA;
ADAMS COUNTY, NEBRASKA; THE
STATE OF NEBRASKA; and JOHN AND
JANE DOES 1-10,
Defendants.

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CASE NO. 4:15CV3047

MEMORANDUM
AND ORDER

This matter is before the Court on the Plaintiff’s Motion for Leave to File Second
Amended Complaint (Filing No. 37). Plaintiff suggests that the Motion should be granted
pursuant to Fed. R. Civ. P. 15(a)(2) which provides that a “court should freely give leave
[to amend] when justice so requires.”
Plaintiff Alma Rose Infante (“Infante”) initiated this action in the District Court for
Adams County, Nebraska, on April 2, 2015, presenting four purported causes of action: (1)
negligence, (2) deprivation of property for public use without just compensation in violation
of the Nebraska Constitution, (3) deprivation of property without just compensation in
violation of Neb. Rev. Stat. § 76-705; and (4) deprivation of her rights under the First, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution under color of state
law, in violation of 42 U.S.C. § 1983.
On May 1, 2015, the Defendant City of Hastings removed the action to this Court,
invoking the Court’s original jurisdiction over Infante’s § 1983 claim and asking the Court
to take supplemental jurisdiction over the remaining claims. On June 14, 2015, Infante
filed an Amended Complaint, similar to the original Complaint in all material respects.
Defendants Adams County and City of Hastings moved to dismiss the Amended
Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can

be granted. The Defendant State of Nebraska moved to dismiss the Amended Complaint
on the same grounds, as well as Fed. R. Civ. P. 12(b)(1), noting that this Court lacked
subject matter jurisdiction over Infante’s civil rights claims against the State of Nebraska,
because the State had not waived its sovereign immunity with respect to such claims.
On September 3, 2015, this Court granted the Defendants’ motions to dismiss;
dismissed Infante’s civil rights claims against the State of Nebraska, with prejudice;
dismissed her other claims, without prejudice; and entered Judgment. See Memorandum
and Order at Filing No. 35, and Judgment at Filing No. 36. Infante did not appeal, nor did
she move to alter or amend the Judgment pursuant to Fed. R. Civ. P. 59(e), and the
Judgment is final.1
Infante’s Motion for Leave to File Second Amended Complaint is untimely and
without merit, and it will be denied.
IT IS ORDERED:
1.

Plaintiff’s Motion for Leave to File Second Amended Complaint (Filing No.
37) is denied; and

2.

Defendant State of Nebraska’s Objection to Plaintiff’s Motion for Leave to
File an Amended Complaint (Filing No. 39) is denied as moot.

DATED this 20th day of October, 2015.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

1

While Infante has not moved for relief from the Judgment pursuant to Fed. R. Civ. P. 60, the
Court notes that nothing in her Motion for Leave to File Second Amended Complaint suggests any
grounds for relief from the Judgment under Rule 60.

2