Mitchell v. Golden Living Enterprises et al
ORDER denying the Plaintiff's 60 Motion for Leave to file Third Amended Complaint. Ordered by Magistrate Judge F.A. Gossett. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SARAH M. MITCHELL,
ASERACARE HOME HEALTH
CARE-OMAHA, L.L.C., GOLDEN
LIVING ENTERPRISES, P.C.,
GOLDEN LIVING, L.L.C., GGNSC
HOLDINGS, L.L.C., and ANTHEM
BLUE CROSS LIFE AND HEALTH
This matter is before the Court on Plaintiff’s Request for Leave to File Third
Amended Complaint (filing 60). Plaintiff’s request will be denied.
Plaintiff filed suit against Odyssey Healthcare, Inc. (“Odyssey”); Golden Living
Enterprises, LLC d/b/a Golden Care Living Aseracare Home Health Care LLC (“Golden
Living”); Blue Cross Blue Shield of Nebraska; Blue Cross Blue Shield of Texas; and Anthem
Blue Cross Life and Health Insurance Company (“Anthem Blue Cross”) in the District Court
of Douglas County, Nebraska on or about November 8, 2012. (Filing 1-1.) The action was
removed to this Court on January 16, 2013 (filing 1). Defendant Golden Living filed a
motion to dismiss (filing 22) the Complaint on February 21, 2013. Defendants Blue Cross
Blue Shield of Nebraska and Blue Cross Blue Shield of Texas filed a motion to dismiss
(filing 23) on February 22, 2013. Defendant Odyssey filed a motion to dismiss (filing 28)
on February 28, 2013.
On March 18, 2013, Plaintiff filed an Amended Complaint naming Odyssey;
Aseracare Home Health Care LLC; Golden Living Enterprises, P.C.; Blue Cross Blue Shield
of Nebraska; Blue Cross Blue Shield of Texas; and Anthem Blue Cross as defendants.
(Filing 29.) Golden Living filed a motion to strike Plaintiff’s Amended Complaint (filing
30) on March 29, 2013. Odyssey filed a motion to dismiss the Amended Complaint (filing
32) on March 29, 2013. Blue Cross Blue Shield of Nebraska and Blue Cross Blue Shield of
Texas filed a motion to strike, or in the alternative, motion to dismiss the Amended
Complaint (filing 34) on April 1, 2013. Anthem Blue Cross filed a motion to strike
Plaintiff’s Amended Complaint (filing 37) and a motion to dismiss Plaintiff’s Amended
Complaint (filing 39) on April 4, 2013.
Plaintiff filed a request for leave to file a Second Amended Complaint (filing 42) on
April 29, 2013. On that day, Plaintiff also filed a motion to dismiss Defendants Odyssey,
Blue Cross Blue Shield of Nebraska, and Blue Cross Blue Shield of Texas (filing 44).
Plaintiff’s motion to dismiss was granted on May 2, 2013 (filing 45).
The Court granted Plaintiff’s request for leave to file a Second Amended Complaint
on May 3, 2013 (filing 46). In so holding, the Court denied the motions to strike filed by
Golden Living, Blue Cross Blue Shield of Nebraska, Blue Cross Blue Shield of Texas, and
Anthem Blue Cross as moot. (Id.) Also, in light of this ruling, the previously filed motions
to dismiss (filings 22, 23, 28, 32, & 39) were denied as moot by separate order (filing 48).
On May 28, 2013, Plaintiff filed a Second Amended Complaint naming Aseracare
Home Health Care-Omaha, LLC; Golden Living Enterprises, P.C.; Golden Living, LLC;
GGNSC Holdings, LLC; Anthem Holding Corp.; and Blue Cross of California, Inc. as
defendants (filing 50). Anthem Blue Cross was substituted for Defendants Anthem Holding
Corp. and Blue Cross of California, Inc. on June 17, 2013. (Filing 58.)
Anthem Blue Cross filed a motion to dismiss the Second Amended Complaint (filing
56) on June 13, 2013. On July 26, 2013, the same day that she responded to the motion to
dismiss filed by Anthem Blue Cross, Plaintiff filed her Request for Leave to File Third
Amended Complaint (filing 60).
Under Federal Rule of Civil Procedure 15, a court should “freely give leave” to amend
a pleading “when justice so requires.” Fed. R. Civ. P. 15. Nevertheless, a party does not have
an absolute right to amend. A 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.” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th
Cir. 2012) (quotation and citation omitted).
Considering the totality of the circumstances, the Court will deny Plaintiff’s motion
to amend. Plaintiff has already amended her complaint on two occasions. At the time of
each of those amendments, motions to dismiss were pending. Now, in the face of another
motion to dismiss, Plaintiff wants to amend her complaint for a third time. Notably, Plaintiff
submitted her motion to file a third amended complaint on the very day she responded to the
currently pending motion to dismiss filed by Anthem Blue Cross. Plaintiff has been given
multiple chances to amend her complaint. Further attempts at amendment would unfairly
prejudice Defendants, particularly given the pending motion to dismiss which is now ripe for
IT IS ORDERED that Plaintiff’s Request for Leave to File Third Amended
Complaint (filing 60) is denied.
DATED September 12, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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