Schreier v. Coventry Health Care of Nebraska

Filing 18

ORDER - The plaintiff's Motion to Amend the Complaint (Filing No. 16 ) is held in abeyance. The plaintiff shall have until July 18, 2013, to supplement the motion to amend to bring it in compliance with NECivR 15.1, by, for example, filing a notice stating whether the motion is unopposed or opposed. Absent the defendant's consent to the amendment, the defendant shall have until July 30, 2013, to file a brief in support of its Motion to Strike (Filing No. 6 ) and in opposition to the plaintiffs Motion to Amend the Complaint (Filing No. 16 ). The Clerk of Court shall amend the docket to terminate the "Amended Motion to Amend" (Filing No. 17 ) as a motion and change the docket text to reflect the filing is a proposed amended complaint and an attachment related to the motion to amend (Filing No. 16 ). Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

PHILIP SCHREIER,
Plaintiff,

8:13CV71

vs.
ORDER
COVENTRY HEALTH CARE OF
NEBRASKA, INC.,
Defendant.
This matter is before the court on the plaintiff’s Motion to Amend the Complaint
(Filing No. 16).

The plaintiff’s motion states, in its entirety, “In response to the

Defendant’s Motion to Strike, Plaintiff moves to amend Complaint to add Breach of
Contract and Bad Faith.” The plaintiff also filed a signed “Amended Complaint” (Filing
No. 17) as an amended motion in the case.
The plaintiff may not amend the complaint as of course (Fed. R. Civ. P. 15(a)(1)),
accordingly the plaintiff “may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). To facilitate the procedure, the
court has a local rule governing amending pleadings.
A party who moves for leave to amend a pleading . . . must
file as an attachment to the motion an unsigned copy of the
proposed amended pleading that clearly identifies the
proposed amendments. . . . 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.
NECivR 15.1.
The plaintiff failed to comply with the Nebraska Civil Rules in several respects.
First, the plaintiff failed to state whether the motion was unopposed.

Second, the

plaintiff failed to file an unsigned proposed amended complaint attached to the motion.
Third, the plaintiff filed a signed, dated complaint, as if leave had been given. Although
the court has been apprised of the nature of the proposed amendments, the manner in
which the amended complaint was filed will likely create confusion in the record.
Additionally, the plaintiff’s failure to confer with opposing counsel likely caused

unnecessary delay and court involvement in this action. Finally, the plaintiff’s motion
was filed as a response to the defendant’s Motion to Strike (Filing No. 6) and does not
address the merits of the defendant’s motion. See NECivR 7.1(b) (noting failure to
comply with the briefing rules may result in the abandonment of a party’s position on a
motion). Under the circumstances, the court will hold the plaintiff’s motion to amend in
abeyance to give the plaintiff an opportunity to cure the deficiencies. Accordingly,

IT IS ORDERED:
1.

The plaintiff’s Motion to Amend the Complaint (Filing No. 16) is held in

abeyance.
2.

The plaintiff shall have until July 18, 2013, to supplement the motion to

amend to bring it in compliance with NECivR 15.1, by, for example, filing a notice stating
whether the motion is unopposed or opposed.
3.

Absent the defendant’s consent to the amendment, the defendant shall

have until July 30, 2013, to file a brief in support of its Motion to Strike (Filing No. 6) and
in opposition to the plaintiff’s Motion to Amend the Complaint (Filing No. 16).
4.

The Clerk of Court shall amend the docket to terminate the “Amended

Motion to Amend” (Filing No. 17) as a motion and change the docket text to reflect the
filing is a “proposed amended complaint” and an attachment related to the motion to
amend (Filing No. 16).
Dated this 15th day of July, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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