Reddick Management Corp. et al v. Omaha, City of et al

Filing 64

ORDER - Plaintiffs' Motion for Leave to Amend Complaint (Filing No. 56 ) is granted. Plaintiffs shall file their amended complaint no later than June 28, 2017. Plaintiffs are reminded that the amended complaint may not include any previously dismissed claims, and may only name the City of Omaha as a defendant. Ordered by Magistrate Judge Susan M. Bazis. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
REDDICK MANAGEMENT CORP., and
KEVIN REDDICK, Individually and in his
Official Capacity as Owner of Reddick
Management Corp.;

8:16CV99
ORDER

Plaintiffs,
vs.
CITY OF OMAHA, NEBRASKA,
Defendant.

This matter is before the Court on Plaintiffs’ Motion for Leave to Amend Complaint.
(Filing No. 56.) For the reasons explained below, the motion will be granted.

BACKGROUND

Plaintiffs instituted this action on February 29, 2016, against the City of Omaha,
Nebraska, Paul Kratz, Michelle Peters and Brook Bench, asserting an action for deprivation of
constitutional rights under 42 U.S.C. § 1983. (Filing No. 1.) The case arises out of a public
bidding process through which Defendants solicited bids for the demolition of the Omaha Civic
Auditorium. Plaintiffs alleged that their rights to due process and equal protection were violated
by City of Omaha’s failure to follow the Small and Emerging Businesses ordinance, Omaha,
Neb., Mun. Code § 10, Division 5.
On August 16, 2016, the Court dismissed Plaintiffs’ equal protection claim. (Filing No.
35.) On February 6, 2017, the Court dismissed Plaintiffs’ claims against Defendants Paul Kratz,
Michelle Peters and Brook Bench. (Filing No. 51.) Therefore, the City of Omaha (hereinafter
“Defendant”) is the only defendant remaining in this action.

DISCUSSION

Plaintiffs seeks leave to amend their Complaint to add additional claims against
Defendant, maintaining that amendment is appropriate because Defendant’s wrongful
conduct has continued, resulting in additional damages. Under Federal Rule of Civil
Procedure 15, the Court should “freely give leave” to amend a pleading “when justice so
requires.” Fed. R. Civ. P. 15. However, a party does not have an absolute right to amend
and “denial of leave to amend may be justified by undue delay, bad faith on the part of
the moving party, futility of the amendment or unfair prejudice to the opposing party.”
Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (quotation and citation omitted).
Defendant opposes Plaintiffs’ motion.

Defendant maintains that leave to amend should be denied because Plaintiffs
unduly delayed filing the motion and have not shown good cause for amending pleadings
beyond the date set forth in the initial progression schedule.

Sherman v. Winco

Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008) (“[I]f a party files for leave to amend
outside of the court’s scheduling order, the party must show cause to modify the
schedule”). The deadline for Plaintiffs to seek leave to amend was initially January 9,
2017 (Filing No. 41), but was later extended to January 23, 2017 (Filing No. 46). During
the planning conference held on March 24, 2017, Plaintiffs’ counsel expressed his desire
to file an amended pleading. Defendant’s counsel indicated that Defendant would likely
object to any such motion. In order to resolve this dispute, the Court stayed all case
progression deadlines and gave Plaintiffs until May 30, 2017, to file a motion for leave to
amend. (Filing No. 53.) Plaintiffs filed their motion on April 21, 2017. Defendant
contends that Plaintiffs’ motion is untimely because Defendants were aware of the facts
underlying the proposed amendment prior to the expiration of the original amended
pleading deadline.

2

A number of procedural issues have occurred in this case which justify allowing
Plaintiffs to amend at this time. On December 15, 2016, shortly after the initial extension
of the amended pleadings deadline, a motion to dismiss (Filing No. 47) was filed.
Another motion to dismiss was filed on February 3, 2017. (Filing No. 50.) Rulings on
the motions to dismiss were issued on February 6, 2017. (Filing No. 51.) Following
those rulings, a planning conference was held, at which time Plaintiffs’ counsel
mentioned that he was considering filing an amended pleading. To accommodate the
potential filing of the motion to amend, the Court stayed all progression deadlines.
Therefore, to date, a final progression schedule has not been entered, and an actual trial
date has not been set.

Considering this background, and where the case currently stands, the Court finds
that Plaintiffs have not unduly delayed in filing the motion and have demonstrated good
cause for amendment. The Court further finds that Defendant will not be prejudiced by
allowing amendment at this time. The case is just over a year old, a final progression
schedule has not been entered, and trial has not been scheduled. Moreover, it does not
appear that the proposed amendments will greatly expand the scope of discovery. The
additional facts and counts do not change the nature of the suit.
Defendant points out that Plaintiffs’ motion fails to comply with NECivR 15.1(a),
which requires that a motion to amend and proposed amended pleading identify the
proposed amendments. It is apparent that Plaintiffs’ motion and proposed amended
pleading were hastily drafted. The body of the motion does not directly reference the
proposed amendments. Although a copy of the proposed amended complaint was
attached to the motion, the proposed pleading does not clearly identify the amendments,
and, as acknowledged by Plaintiffs in their reply brief, includes several errors. Since the
filing of the motion to amend, Plaintiffs have attempted to remedy their failure to comply
with this Court’s Local Rules. Plaintiffs attached a revised proposed amended complaint
to their reply brief, which identifies the proposed amendments. (Filing No. 61.) The
3

Court will deem this submission sufficient for purposes of complying with the Local
Rules of this Court in this instance. However, Plaintiffs are advised to carefully follow
the Local Rules of this Court in the future.

Plaintiffs have acknowledged that the equal protection claim has been dismissed
and should not be included in their amended pleading.

Still, the revised proposed

amended complaint attached to Plaintiffs’ reply brief contains references to this cause of
action, including, but not necessarily limited to, in the introductory paragraph and
paragraph 4 (as now numbered in the proposed revised pleading). (Filing No. 61-1.)
Plaintiffs may not, through amendment, reassert the equal protection claim. Plaintiffs
will be allowed to file an amended pleading. However, Plaintiffs are advised to carefully
edit the amended pleading to ensure that all references to the equal protection claim have
been removed. Failure to do so will result in this claim, and all references to it, being
stricken.

Accordingly, for good cause shown,
IT IS ORDERED:

1.

Plaintiffs’ Motion for Leave to Amend Complaint (Filing No. 56) is granted.

2.

Plaintiffs shall file their amended complaint no later than June 28, 2017.

Plaintiffs are reminded that the amended complaint may not include any previously dismissed
claims, and may only name the City of Omaha as a defendant.
Dated this 27th day of June, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
4