Fjellin et al v. Penning et al

Filing 38

MEMORANDUM AND ORDER - Plaintiffs' Motion for Leave to Amend the Complaint (Filing 32 ) is denied. Ordered by Senior Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACQUELINE C. FJELLIN, for and
as Trustee of the Leonard Van Liew
Living Trust, and JAMES J. VAN
LIEW, for and as Trustee of the
Leonard Van Liew Living Trust,
Plaintiffs,
v.
MARVIN PENNING, individually,
MARY PENNING, individually,
MYRON KAPLAN, individually,
and MCGILL GOTSDINER
WORKMAN & LEPP, P.C., L.L.O.,
Defendants.

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8:14CV77

MEMORANDUM
AND ORDER

In September 2014, I granted a Rule 12(b)(6) motion (Filing 10) filed by
defendants Myron Kaplan (“Kaplan”) and McGill Gotsdiner Workman & Lepp, P.C.,
L.L.O. (“McGill”), as to Plaintiffs’ UCC (Uniform Commercial Code) and negligence
claims against them. I granted Plaintiffs leave to file a motion to amend their
complaint “to assert claims against [Kaplan and McGill] related to the allegation that
defendant Kaplan caused sale proceeds to be kept from the Trust.” The motion for
leave to file an amended complaint was to be filed by September 19, 2014. (Filing
20.)
In compliance with my order, Plaintiffs filed a motion to file and serve an
amended complaint on September 19, 2014. (Filing 21.) However, in violation of my
order, Plaintiffs included in their proposed amended complaint two additional
defendants and claims against them, and also reasserted the previously dismissed UCC

and negligence claims against Kaplan and McGill. (Filing 21-1.)
After briefing on Plaintiffs’ motion to file an amended complaint (Filings 22,
23, 25), and on February 11, 2015, Magistrate Judge Zwart denied (Filing 26)
Plaintiffs’ motion for leave to amend because the proposed amended complaint failed
to allege the citizenship of members of two Minnesota LLCs that Plaintiffs sought to
add as new defendants such that complete diversity could be lacking.
On February 24, 2015, Plaintiffs filed an objection (Filing 29) to Magistrate
Judge Zwart’s order, followed the next day by a second motion for leave to amend the
complaint. (Filing 32). In light of the second motion for leave to amend the
complaint, I denied as moot the Plaintiffs’ objection to Magistrate Judge Zwart’s order
denying Plaintiffs’ first motion for leave to amend. (Filing 37.)
Plaintiffs’ second motion for leave to amend the complaint (Filing 32), now
pending before me, states that Plaintiffs have removed one of the two new LLC
defendants and have added jurisdictional allegations against the other new LCC
defendant. Plaintiffs also admit that they have indeed reasserted the dismissed UCC
and negligence claims against Kaplan and McGill, but only “for the sole purpose of
preserving their right to appeal from the dismissal of such claim[s].”1 (Filing 32 at

1

The prevailing federal view is that a party does not waive the right to appeal
a court’s dismissal of claims when leave to amend is given. Young v. City of Mount
Ranier, 238 F.3d 567, 572-73 (4th Cir. 2001) (“the plaintiff does not forfeit the right
to challenge the dismissal on appeal simply by filing an amended complaint that does
not re-allege the dismissed claim”); Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th
Cir. 2012) (“[f]or claims dismissed with prejudice and without leave to amend, we
will not require that they be repled in a subsequent amended complaint to preserve
them for appeal . . . for any claims voluntarily dismissed, we will consider those
claims to be waived if not repled”); Badger Pharm., Inc. v. Colgate-Palmolive Co.,
1 F.3d 621, 625 (7th Cir. 1993) (when plaintiff amended complaint after court
dismissed misrepresentation claims, plaintiff “did not waive any challenge to the
2

CM/ECF p. 2.)
I shall deny Plaintiffs’ second motion for leave to amend the complaint (Filing
32) because the proposed amended complaint (Filing 32-1) fails to comply with this
court’s prior order (Filing 20)—which allowed amendments by September 19, 2014,
solely “to assert claims against [Kaplan and McGill] related to the allegation that
defendant Kaplan caused sale proceeds to be kept from the Trust.” Specifically, the
proposed amended complaint, without leave to do so, (a) was filed four months
beyond the court’s deadline; (b) added a new defendant and claims against that
defendant; and (c) contained the previously dismissed UCC and negligence causes of
action against Kaplan and McGill.2
district court’s dismissal of the misrepresentation claims”); Davis v. TXO Prod. Corp.,
929 F.2d 1515, 1517 (10th Cir. 1991) (“a rule requiring plaintiffs who file amended
complaints to replead claims previously dismissed on their merits in order to preserve
those claims merely sets a trap for unsuspecting plaintiffs with no concomitant benefit
to the opposing party”); Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. &
Canada, 674 F.2d 1365, 1370 (11th Cir. 1982) (when district court, with plaintiff’s
consent, dismissed original complaint for failure to state claim upon which relief could
be granted and granted plaintiff leave to amend, plaintiff was not barred, by filing the
amended complaint, from raising on appeal the correctness of the dismissal order);
Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.1978) (by filing
amended complaint after court’s dismissal with leave to amend, plaintiff was not
barred from raising on appeal the correctness of dismissal order), vacated on other
grounds, 444 U.S. 959 (1979). See also 6 Charles Alan Wright, et al., Federal
Practice & Procedure § 1476 (3d ed. Westlaw 2015) (“A rule that a party waives all
objections to the court’s dismissal if the party elects to amend is too mechanical and
seems to be a rigid application of the concept that a Rule 15(a) amendment completely
replaces the pleading it amends. Without more, the action of the amending party
should not result in completely denying the right to appeal the court’s ruling.”).
2

Obviously, amending the complaint to restate UCC and negligence claims
against Kaplan and McGill is futile because such claims previously have been
dismissed on the merits. Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 511
(8th Cir. 2012) (“[W]hen the court denies leave on the basis of futility, it means the
3

Accordingly,
IT IS ORDERED that Plaintiffs’ Motion for Leave to Amend the Complaint
(Filing 32) is denied.
DATED this 11th day of May, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

district court has reached the legal conclusion that the amended complaint could not
withstand a motion to dismiss under Rule 12(b)(6) . . . .”) (internal quotation marks
and citation omitted).
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functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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