Davenport Limited Partnership v. Singer

Filing 19

ORDER - Defendant Henry A. Singer will respond to Plaintiff's Motion to File an Amended Complaint (Filing No. 18 ) (construed as a motion to vacate judgment under Fed. R. Civ. P. 60(b)(1), and to file an Amended Complaint), on or before Monday, October 17, 2011. Ordered by Judge Laurie Smith Camp. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVENPORT LIMITED PARTNERSHIP,
Plaintiff,
vs.
HENRY A. SINGER,
Defendant.

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CASE NO. 8:11CV210

ORDER

This matter is before the Court on Plaintiff Davenport Limited Partnership’s Motion
for Leave to File an Amended Complaint (Filing No. 18). The Court previously dismissed
(without prejudice) Plaintiff’s first Complaint (Filing No. 1) on res judicata grounds. (Filing
Nos. 16 and 17). In its proposed First Amended Complaint, Plaintiff now alleges that
Defendant Henry A. Singer withdrew assets from various partnerships after Plaintiff
obtained judgments against those partnerships, leaving them incapable of satisfying their
obligations. (Filing No. 18-1, at new ¶¶ 14–16, 23). Plaintiff submits that this constitutes
an “intervening change in facts or circumstances” such that res judicata should not bar its
current action. Ichtertz v. Orthopaedic Specialists of Nebraska, P.C., 730 N.W.2d 798, 804
(Neb. 2007) (quoting Moulton v. Bd. of Zoning App., Lincoln, 555 N.W.2d 39, 45 (Neb.
1996)); (Filing No. 18, at ¶¶ 5–7).
Plaintiff has requested leave to amend its complaint pursuant to Fed. R. Civ. P. 15.
(Filing No. 18, at ¶ 9). The Court previously dismissed Plaintiff’s first Complaint, however,
without granting leave to amend (Filing No. 17), and “[a]fter a complaint is dismissed, the
right to amend under Fed. R. Civ. P. 15(a) terminates.” Dorn v. State Bank of Stella, 767
F.2d 442, 443 (8th Cir. 1985) (citing Czeremcha v. Int’l Ass’n of Machinists & Aerospace
Workers, 724 F.2d 1552, 1556 (11th Cir.1984)).

The Court will construe Plaintiff’s motion as one seeking to vacate the Court’s
judgment under Fed. R. Civ. P. 60(b)(1), as well as for leave to file the proposed Amended
Complaint, and the Defendant will respond to the Motion, so construed, on or before
October 17, 2011.
IT IS ORDERED:
Defendant Henry A. Singer will respond to Plaintiff’s Motion to File an Amended
Complaint (Filing No. 18) (construed as a motion to vacate judgment under Fed. R.
Civ. P. 60(b)(1), and to file an Amended Complaint), on or before Monday, October
17, 2011.
DATED this 27th day of September, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

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