Stanko v. Bosselman Enterprises et al

Filing 16

ORDER that Stanko's post-dismissal Motion for Leave to File Amended Complaint (Filing No. 15 ) is denied. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUDY BUTCH STANKO,
Plaintiff,

7:17CV5000

vs.
BOSSELMAN ENTERPRISES; PAUL
RIGGS, Division Manager, individually
and in his official capacity; and
DEFENDANTS 1X THROUGH 3X,
individually,

ORDER

Defendants.
This matter is before the Court on plaintiff Rudy Butch Stanko’s (“Stanko”)
Motion for Leave to File Amended Complaint (Filing No. 15). Stanko filed his Motion
for Leave on April 5, 2017.

Two days before that, this Court dismissed Stanko’s

Complaint against defendants Bosselman Enterprises and Paul Riggs (collectively,
“defendants”) for failing to state a plausible claim for relief. See Fed. R. Civ. P. 12(b)(6).
In particular, the Court determined Stanko failed to show (1) state action as required to
support his First Amendment and 42 U.S.C. § 1985(3) claims and (2) the requisite
contractual relationship or discriminatory animus to support any 42 U.S.C. § 1981 claim.
The Court entered judgment the same day.
Stanko filed the present Motion for Leave pursuant to Federal Rule of Civil
Procedure 15. “Whether to grant a motion for leave to amend is within the sound
discretion of the court.” Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th Cir.
1999).

Under Rule 15(a)(2), “the court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). However, “plaintiffs do not have an absolute or
automatic right to amend.” U.S. ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749
(8th Cir. 2005). And this Court is “not required to engage in a guessing game” as to the

proposed amendments. Meehan v. United Consumers Club Franchising Corp., 312 F.3d
909, 914 (8th Cir. 2002).
The Court may also deny “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)); accord In re Charter Commc’ns, Inc., Sec. Litig., 443 F.3d 987, 993 (8th
Cir. 2006) (“Denial of a motion to amend on [the ground that an amended pleading would
be futile], particularly a motion filed after the district court’s final ruling, is not an abuse
of discretion.”).

“Some examples of futile claims are ones that are duplicative or

frivolous, or claims that could not withstand a motion to dismiss under Rule 12(b)(6).”
Silva v. Metro. Life Ins. Co., 762 F.3d 711, 719 (8th Cir. 2014) (internal marks and
citations omitted) (quoting Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010)).
In moving for leave to amend, Stanko has not complied with the local rules
regarding such motions nor otherwise explained—even in simple terms—how any
proposed pleading would cure the substantial deficiencies in his Complaint.
Nebraska Civil Rule 15.1(a),
A party who moves for leave to amend a pleading (including a request to
add parties) must file as an attachment to the motion an unsigned copy of
the proposed amended pleading that clearly identifies the proposed
amendments. Except as stated in these rules or court order, the proposed
amended pleading must be a complete pleading that, if allowed to be filed,
supersedes the original pleading in all respects; no part of the prior pleading
may be incorporated into the proposed amended pleading by reference. The
motion for leave to amend must (1) specifically state the proposed
amendments and (2) state whether the motion is unopposed or opposed,
after conferring with opposing parties.

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Under

Stanko has not attached a proposed amended complaint, stated his proposed amendments,
or indicated whether he conferred with the defendants about any opposition to such a
motion.

What’s more, Stanko impermissibly leaves the Court to guess at what his

proposed amendments might be. See Meehan, 312 F.3d at 914.
In his Motion for Leave, Stanko simply states “[t]he case is in the beginning
stages” and that he has identified some of the unknown defendants. “[A] party is not
entitled to amend a complaint without making a showing that such an amendment would
be able to save an otherwise meritless claim.” Plymouth Cnty., Iowa v. Merscorp, Inc.,
774 F.3d 1155, 1160 (8th Cir. 2014); see also Frentzel v. Boyer, 297 F. App’x 576, 578
(8th Cir. 2008) (unpublished per curiam) (concluding “the district court did not abuse its
discretion” in denying a motion to amend “because the amendment would have been
futile as [the plaintiff] could not establish a constitutional violation”).
“Given [Stanko’s] failure to communicate the substance of h[is] proposed
amendments,” the Court finds no compelling reason to grant Stanko’s post-dismissal
motion for leave to amend. Fairview Health Sys., 413 F.3d at 750 (affirming the denial
of leave to amend where the plaintiff did not attach an amended pleading as required by
local rule and did not “detail the substance of her amendment or delineate which new
claims she would assert”); accord Dudek v. Prudential Securities, Inc., 295 F.3d 875, 880
(8th Cir. 2002) (same). Stanko’s post-dismissal Motion for Leave to File Amended
Complaint (Filing No. 15) is denied.
IT IS SO ORDERED.
Dated this 7th day of April, 2017.

BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

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