Continental Casualty Company v. Greater Omaha Packing Company, Inc.
Filing
32
MEMORANDUM AND ORDER - Continental's motion for leave to file an amended complaint (filing 28 ) is granted. Continental shall file its amended complaint on or before January 25, 2016. Ordered by Judge John M. Gerrard. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CONTINENTAL CASUALTY
COMPANY, an Illinois corporation.
8:14-CV-194
Plaintiff,
vs.
MEMORANDUM AND ORDER
GREATER OMAHA PACKING
COMPANY, INC., a Nebraska
corporation,
Defendant.
This matter is before the Court on an order to show cause (filing 25)
why the plaintiff Continental Casualty Company's complaint should not be
dismissed in its entirety for failure to state a claim and for lack of an issue
ripe for judicial review. Continental has asked for leave (filing 28) to file an
amended complaint (filing 28-1), which it argues addresses the issues the
Court raised in its order to show cause.
Federal Rule of Civil Procedure 15(a) states that courts "should freely
give leave" to amend a complaint "when justice so requires." The Supreme
Court has directed that "this mandate is to be heeded" as long as there is an
"absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of
amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). Similarly, the
Eighth Circuit has repeatedly held that "[a]mendments [to pleadings] should
be allowed with liberality.” Baptist Health v. Smith, 477 F.3d 540, 544 (8th
Cir. 2007) (second alteration in original) (quoting Chesnut v. St. Louis
County, 656 F.2d 343, 349 (8th Cir. 1981)).
The defendant responds to the plaintiff's request for leave to amend by
suggesting that the complaint remains deficient in various respects. See filing
31. But at this juncture, without further argument or factual development
from the parties, it is not apparent that amendment would be futile. See
Foster v. Cerro Gordo Cty., 33 F. Supp. 3d 1052, 1057 (N.D. Iowa 2014). For
instance, the Court cannot determine as a matter of law whether the new
policy exclusions raised by the plaintiff apply because it is unclear precisely
how Fairbank alleges its damages were incurred.
Therefore, the Court finds that at this juncture, cause has been shown
why Continental's claims should not be dismissed. Of course, GOPAC is free
to address any deficiencies it has identified in the plaintiff's amended
complaint or any inability on the part of the plaintiff to prove its allegations
by utilizing the provisions in Fed. R. Civ. P. 12 or Fed. R. Civ. P. 56.
IT IS ORDERED:
1.
Continental's motion for leave to file an amended complaint
(filing 28) is granted.
2.
Continental shall file its amended complaint on or before
January 25, 2016.
Dated this 15th day of January, 2016.
BY THE COURT:
John M. Gerrard
United States District Judge
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