Doll Construction, LLC v. AMCO Insurance Company, et al

Filing 36

ORDER denying 35 Motion for Leave to File Amended Complaint. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DOLL CONSTRUCTION, LLC ,

a Nebraska Limited Liability
Company,

8:15CV68

Plaintiff,
ORDER
vs.

AMCO INSURANCE COMPANY, an
Iowa Corporation; UNITED FIRE
AND
CASUALTY
INSURANCE
COMPANY, an Iowa Corporation;
BLUE CROSS AND BLUE SHIELD
OF
NEBRASKA,
a
Nebraska
Corporation; and CHASTAIN OTIS,
INC., a Nebraska Corporation,
Defendants.
This matter is before the court on the plaintiff’s Motion for Leave to File Amended
Complaint (Filing No. 35). The plaintiff states the purpose of the amendment is to add
allegations against the defendant Chastain Otis, Inc. (Chastain). The plaintiff’s motion
comes after Chastain filed a motion to dismiss and other defendants filed a motion to
dismiss and removed this action to federal court based on the plaintiff’s allegedly
improper joinder of Chastain.

See Filing No. 32 - Findings and Recommendation.

Upon review of the earlier fully-briefed motions, the undersigned magistrate judge
recommended the plaintiff’s motion to remand be denied and the defendants’ motions
be granted. Id. The Findings and Recommendation is currently before Senior Judge
Joseph F. Bataillon on the plaintiff’s objection. See Filing No. 33.
While the merits to any amendments to the complaint will not be resolved at this
time, the court finds the motion itself is deficient. 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, although the plaintiff attached the proposed pleading, it failed to specifically state
the proposed amendments. Second, the plaintiff failed to state whether the motion was
unopposed. Normally, the plaintiff’s failure to confer with opposing counsel will likely
cause unnecessary delay and court involvement in the action. In this matter the failure
highlights additional deficiencies in the plaintiff’s filing. In particular, the plaintiff states,
“Pursuant to Fed.R.Civ.P. 15 and NECivR 7.1(a)(1)(B) this motion presents not [sic]
substantial issue of law as the relief is within the Court’s discretion and is therefore
submitted without a supporting brief.” See Filing No. 35 - Motion p. 2. Such statement
stands in stark contrast to the actions taken by all of the parties in this matter, including
the removal, two motions to dismiss, and the plaintiff’s own motion to remand. All of
these filings touch upon whether the plaintiff properly included Chastain as a defendant
and the allegations against Chastain. Seeking to amend, without a supporting brief, at
this time to add allegations against Chastain is disingenuous, at best. Generally, any
opposed motion to amend, as this one clearly would be, presents an issue of law.
Furthermore, the circumstances of this case make it abundantly clear issues of law will
impact the court’s decision and the plaintiff’s motion bears no resemblance to the
examples given in the local rule. See NECivR 7.1(a)(1)(B).1 Accordingly, the court
finds the plaintiff’s motion raises a substantial issue of law. The plaintiff’s failure to
comply with the court’s local rules will be treated as an abandonment of the motion.

1

A brief is not required if (i) a motion raises no substantial issue of law and (ii) relief is within the court's
discretion. Examples include motions to which all parties consent, to withdraw as counsel to a party, for
an extension of time, or for leave to proceed in forma pauperis. If the court concludes that a motion
raises a substantial issue of law, however, it may treat the failure to file a brief as an abandonment of the
motion.
2

IT IS ORDERED:
The plaintiff’s Motion for Leave to File Amended Complaint (Filing No. 35) is
denied.
Dated this 7th day of May, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

3