Broom, Clarkson, Lanphier & Yamamoto v. Kountze

Filing 44

ORDER granting Kountze's 35 Motion for Leave to File Counterclaim. Kountze shall have until June 26, 2015, to file the counterclaim. Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk of the Court within fou rteen (14) days after being served with a copy of this Order. Failure to timely object may constitute a waiver of any objection. The brief in support of any objection shall be filed at the time of filing such objection. Failure to file a brief in support of any objection may be deemed an abandonment of the objection. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BROOM, CLARKSON, LANPHIER
& YAMAMOTO, a Partnership,
8:14CV206
Plaintiff,
vs.

ORDER

EDWARD KOUNTZE, individually and
as Personal Representative of the
Estate of Denman Kountze, Jr. in
Collier County, Florida,
Defendant.
This matter is before the court on the defendant’s, Edward Kountze (Kountze),
Motion for Leave to File Counterclaim (Filing No. 35). The plaintiff, Broom, Clarkson,
Lanphier & Yamamoto (BCLY), filed a brief (Filing No. 39) and index of evidence (Filing
No. 40) in opposition. Kountze filed a brief (Filing No. 42) and index of evidence (Filing
No. 43) in reply.

BACKGROUND
This action pertains to Kountze’s alleged failure to pay attorneys’ fees due to
BCLY. See Filing No. 1 - Notice of Removal Ex. A - Complaint. The parties entered
into an agreement for the provision of legal services on September 15, 2004. Id. BCLY
alleges it performed the legal services and Kountze has refused to pay for such
services. Id. BCLY filed this action on September 25, 2013, in the District Court of
Douglas County, Nebraska. Id. Thereafter, on July 17, 2014, Kountze removed this
action to the United States District Court for the District of Nebraska. Id. On May 1,
2015, within the court’s deadline to file a motion to amend the pleadings, 1 Kountze filed
the instant motion. See Filing No. 35 - Motion. Kountze seeks to file a counterclaim for
breach of contract on the basis BCLY overcharged him and engaged in a pattern of
overbilling for legal services and performing unnecessary, excessive, unauthorized, and
unreasonable work. See Filing No. 35-1 - Counterclaim; Filing No. 42 - Reply. BCLY
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Upon the parties’ Joint Motion to Modify Case Schedule, the court extended the deadline to amend the
pleadings to May 1, 2015. See Filing No. 34 - Order.

asserts Kountze’s breach of contract counterclaim is actually a professional negligence
claim. See Filing No. 39 - Response. As a result, BCLY contends a two-year statute of
limitations applies to Kountze’s counterclaim and because the last possible date BCLY
rendered professional services was January 2013, Kountze’s counterclaim is time
barred. Id. (citing Neb. Rev. Stat. § 25-222; Filing No. 35-1 - Counterclaim ¶ 36; Filing
No. 40-1 - Lanphier Aff. ¶ 13). BCLY also argues Kountze’s counterclaim does not
relate back to the time BCLY filed its complaint. Id. (citing Ed Miller & Sons, Inc. v.
Earl, 502 N.W.2d 444 (Neb. 1993)). In reply, Kountze argues although his counterclaim
is a breach of contract claim, regardless of how his claim is characterized, Nebraska law
expressly holds that for purposes of the statute of limitations, a counterclaim, as an
action, is considered commenced on the date the plaintiff’s complaint is filed. See Filing
No. 42 - Reply p. 7-12 (citing Becker v. Hobbs, 590 N.W.2d 360 (Neb. 1999)).
Kountze argues because BCLY filed its complaint on September 25, 2013, Kountze’s
counterclaim is within the two-year statute of limitations. Id.

ANALYSIS
A court should grant leave to amend freely “when justice so requires.” Fed. R.
Civ. P. 15. There is no absolute right to amend. See Hartis v. Chicago Title Ins. Co.,
694 F.3d 935, 948 (8th Cir. 2012). Whether to grant a motion for leave to amend is
within the sound discretion of the district court. See Popoalii v. Corr. Med. Servs., 512
F.3d 488, 497 (8th Cir. 2008). Leave to amend would be futile if the amended claim is
time barred by an applicable statute of limitations. See Enervations, Inc. v. Minnesota
Mining & Mfg. Co., 380 F.3d 1066, 1068-69 (8th Cir. 2004).
According to the parties, January 24, 2013, the date BCLY withdrew from
representing Kountze, is the earliest the statute of limitations began to run on Kountze’s
counterclaim. Assuming, for purposes of this motion, Kountze’s counterclaim is one of
professional negligence, thus a two-year statute of limitations applies, Kountze had until
January 24, 2015, to file his counterclaim. See Neb. Rev. Stat. § 25-222 (establishing a
two-year statute of limitations for claims based on alleged professional negligence). As
stated in Becker, “whether a counterclaim is barred by the applicable statute of
limitations is determined by the date the plaintiff’s petition was filed, rather than the date
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the counterclaim was filed.” Becker, 590 N.W.2d at 365. BCLY filed its complaint on
September 25, 2013.

See Filing No. 1 - Ex. A Complaint.

Because Kountze’s

counterclaim relates back to the time BCLY filed its complaint, Kountze’s counterclaim
is considered filed on September 25, 2013. Ed Miller & Sons, which BCLY relies on to
support its argument Kountze’s counterclaim does not relate back to the time BCLY filed
its complaint, is distinguishable from this case. As discussed in Becker,
In Ed Miller & Sons, Inc., unlike in [Becker], the applicable
statute of limitations had run on the counterclaim prior to the
date that the plaintiff filed its petition. In fact, the statute of
limitations on the counterclaim in Ed Miller & Sons, Inc. had
run more than a year before the plaintiff filed its petition. . . .
Thus, the defendant’s counterclaim in Ed Miller & Sons,
Inc. did not meet the requirement that the counterclaim be a
viable action on the date that the plaintiff’s petition is filed,
and our conclusion is not contradictory to the facts in Ed
Miller & Sons, Inc.
Becker, 590 N.W.2d at 365-66.

Similar to Becker, and unlike Ed Miller & Sons,

Kountze had “a viable action on the date” BCLY filed its complaint. Therefore, the court
finds Kountze’s counterclaim is timely. Accordingly,

IT IS ORDERED:
1.

Kountze’s Motion for Leave to File Counterclaim (Filing No. 35) is granted.

2.

Kountze shall have until June 26, 2015, to file the counterclaim.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.
Dated this 23rd day of June, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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