Applied Underwriters, Inc. v. Sedgwick Claims Management Services, Inc.

Filing 28

ORDER - that Plaintiff's Motion for Leave to File an Amended Complaint (Filing No. 25 ) is granted. Plaintiff shall file its amended complaint by February 5, 2019. Ordered by Magistrate Judge Susan M. Bazis. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
APPLIED UNDERWRITERS, INC., a Nebraska
Corporation;
8:17CV401
Plaintiff,
ORDER

vs.
SEDGWICK CLAIMS MANAGEMENT
SERVICES, INC., a Delaware Corporation;
Defendant.

This matter is before the Court on Plaintiff’s Motion for Leave to File an Amended Complaint.
(Filing No. 25.) The motion will be granted.

DISCUSSION

On May 4, 2018, Chief United States District Court Judge John Gerrard entered a
Memorandum and Order granting Defendant’s Motion for Partial Dismissal. (Filing No. 14.) Judge
Gerrard dismissed Plaintiff’s claims for breach of fiduciary duty; breach of the covenant of good faith
and fair dealing; and unjust enrichment. Plaintiff was given until May 18, 2018 to file an amended
complaint to replead its tortious interference claim.

On May 23, 2018, Plaintiff filed an interlocutory appeal with the Eighth Circuit Court of
Appeals from the May 4, 2018 Memorandum and Order. On October 9, 2018, the Eighth Circuit
dismissed the appeal for lack of jurisdiction.

The parties submitted a report on December 13, 2018, advising the Court as to the status of this
action. (Filing No. 23.) Upon review of the parties’ report, the Court ordered that Plaintiff file a
motion to amend its complaint by December 21, 2018. (Filing No. 24.) Plaintiff filed the instant
motion on December 20, 2018. Defendant opposes the motion.

DISCUSSION
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. Nevertheless, 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 omitted). Also, “[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.”
Popoalii v. Corr. Med. Servs, 512 F.3d 488, 497 (8th Cir. 2008). Whether to grant a motion for leave
to amend is within the sound discretion of the district court. Id.
In opposition to Plaintiff’s motion, Defendant argues that Plaintiff abandoned its option to
amend its Complaint by filing an appeal with the Eighth Circuit. The Court is unpersuaded by
Defendant’s argument. The Court will not penalize Plaintiff for choosing to file an appeal, rather than
file an amended complaint. Plaintiff’s decision to appeal does not show that Plaintiff acted in bad faith
or tried to delay these proceedings.

Moreover, this litigation is still in its initial stages. Defendant has not filed an Answer to
Plaintiff’s Complaint. The Court has not issued a scheduling order. The parties have not submitted a
Rule 26(f) Report, nor, to the Court’s knowledge, have they undertaken any discovery. Defendant will
not be prejudiced through amendment.

Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Leave to File an Amended Complaint (Filing No.
25) is granted. Plaintiff shall file its amended complaint by February 5, 2019.
Dated this 1st day of February, 2019.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

2