Judds Brothers Construction Co. v. Mersino Dewatering, Inc.
ORDER that plaintiff's 99 Motion for Leave to Amend Complaint is denied. Defendant's 105 Motion for Leave to File A Sur-Reply in Opposition to Judds Brothers' Motion for Leave to Amend its Pleadings is denied as moot. Ordered by Magistrate Judge Michael D. Nelson. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUDDS BROTHERS CONSTRUCTION
CO., a Nebraska Corporation;
MERSINO DEWATERING, INC., a
This matter is before the Court on the Motion for Leave to Amend Complaint (Filing No.
99) filed by Plaintiff, Judds Brothers Construction Co. (“Judds”), which is opposed by Defendant,
Mersino Dewatering, Inc., (“Mersino”). The Court will deny the motion.
This lawsuit concerns Judds’ allegations that Mersino failed to dewater a sewer project site
in accordance with the parties’ contract. Judds commenced this action in state court on November
24, 2015, and Mersino removed the action to this Court on January 4, 2016. (Filing No. 1). Judds’
Complaint contains five Claims against Mersino: breach of contract (Claim I); negligence (Claim
II); breach of implied warranty of fitness for a particular purpose (Claim III); breach of express
warranty of fitness for a particular purpose (Claim IV); and unjust enrichment (Claim V). (Filing
No. 1 at pp. 10-13). Mersino counter-claimed for breach of contract and quantum meruit. (Filing
On March 14, 2016, the Court entered an initial progression order setting April 11, 2016, as
the deadline to file “[a]ny motion to amend pleadings[.]” (Filing No. 14). Written discovery closed
on August 31, 2016, and the deposition deadline was January 30, 2017. (Filing No. 33; Filing No.
53). After discovery closed, Mersino moved for summary judgment (Filing No. 60), and on May
26, 2017, Chief Judge Smith Camp entered a Memorandum and Order dismissing all of Judds’
claims except Claim I for breach of contract. (Filing No. 87 at pp. 23-24).
Specifically, with respect to Judds’ breach of contract claim, Judge Smith Camp concluded,
“A triable issue of fact exists as to whether Mersino’s Second Proposal for a well-point system, and
Mersino’s advice to Judds regarding continued use of the well-point system, violated the implied
duty to perform the contract with care, skill, reasonable expedience, and faithfulness,” and that
questions of material fact existed regarding Mersino’s “potential concealment or bad faith” with
respect to the delay clause. (Filing No. 87 at pp. 15-16). Mersino’s motion for summary judgment
as to its counter-claims was also denied. (Filing No. 23 at p. 23). Mersino has moved for
reconsideration of the Memorandum and Order, which motion is pending before Judge Smith
Camp. (Filing No. 92).
Shortly after the summary judgment ruling, Magistrate Judge F.A. Gossett held a final
pretrial conference with the parties on May 31, 2017. After the Court granted the parties an
extension to revise their final pretrial documents, the Order on Final Pretrial Conference was
entered on June 27, 2017. (Filing No. 95). Two weeks later, Judds filed the instant motion to
amend its Complaint, seeking to clarify its allegations that Mersino expressly breached the contract
when Mersino failed to “provide additional systems, if needed, at additional cost” and to add
examples and describe “in detail” “the numerous ways in which Mersino breached the common law
duty of care, skill, reasonable expediency and faithfulness.” (Filing No. 99 at pp. 2-3). Trial is set
to commence on September 19, 2017.
Although Judds requests leave to amend its complaint, once the final pretrial conference has
been held and a final pretrial order entered, the final pretrial order “supersedes all previous
pleadings and controls the subsequent course of action[.]”
United States v. $84,615 in U.S.
Currency, 379 F.3d 496, 499 (8th Cir. 2004); see Hartman v. Workman, 476 F.3d 633, 635 n. 3 (8th
Cir. 2007) (“The issues identified in the Pretrial Order supersede any issues raised in the
Complaint[.]”). Therefore, the Court will construe Judds’ motion to amend its complaint as a
motion to amend the final pretrial order, which is now the operative pleading.
“The final pretrial conference and order ‘measure[ ] the dimensions of the lawsuit,’
including the issues to be tried.” Friedman & Friedman, Ltd. v. Tim McCandless, Inc., 606 F.3d
494, 498 (8th Cir. 2010)(quoting $84,615 in U.S. Currency, 379 F.3d at 499). The final pretrial
conference is critical for “promoting efficiency and conserving judicial resources by identifying the
real issues prior to trial, thereby saving time and expense for everyone.” Fed. R. Civ. P. 16
Advisory Committee Note (1983 Amendment to subdivision (c)). “The court may modify the order
issued after a final pretrial conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e).
“Orders entered following Rule 16 conferences are not lightly disturbed,” and “will be modified
only if there is no substantial injury or prejudice to the opponent.” $84,615 in U. S. Currency, 379
F.3d at 499 (citations and internal quotations omitted).
Paragraph (C) of the Final Pretrial Order in this case consists of nearly thirty pages of
Controverted and Unresolved issues identified by the parties. Included amongst Judds’ claims
under this section are (1) whether Mersino breached the contract by failing to perform in accordance
with the common law duty of care (and several ways in which Mersino allegedly breached its
common law duty) and (2) whether Mersino breached the contract when it did not propose
additional dewatering systems. (Filing No. 95 at pp. 5-7, 12).
Judds’ claims in the final pretrial
order already encompass what it seeks to add by way of an amended complaint. Moreover, in the
final pretrial order, Mersino noted and preserved its objections to Judds’ claims, including
Mersino’s arguments that Judds insufficiently pled certain claims and that the majority of Judds’
claims were dismissed/already addressed by Judge Smith Camp’s Memorandum and Order. (Filing
No. 95 at pp. 5-23). The final pretrial order in this case accurately “measures the dimensions” of
the lawsuit. It contains claims that Judds believes it has sufficiently pled or that remain after
summary judgment, and Mersino has documented its objections to those claims. The plaintiffs have
not demonstrated that the final pretrial order should be modified or amended to prevent manifest
injustice, and the Court is mindful that final pretrial orders “are not lightly disturbed.” See $84,615
in U.S Currency, 379 F.3d at 499. Accordingly,
IT IS ORDERED:
1. Plaintiff’s Motion for Leave to Amend Complaint (Filing No. 99) is denied.
2. Defendant’s Motion for Leave to File A Sur-Reply in Opposition to Judds Brothers’
Motion for Leave to Amend its Pleadings (Filing No. 105) is denied as moot.
Dated this 16th day of August, 2017.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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