Davis v. Ak-Sar-Ben Village, L.L.C.

Filing 63

MEMORANDUM AND ORDER - that the Plaintiff's Motion for Leave to Amend Her Complaint (Filing No. 60 ) is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MELANIE DAVIS,
Plaintiff,

8:18CV101

vs.
MEMORANDUM AND ORDER
AK-SAR-BEN VILLAGE, L.L.C.,
Defendant.
This matter is before the court on Plaintiff Melanie Davis’ Motion for Leave
to Amend Her Complaint. (Filing No. 60). Defendant Ak-Sar-Ben Village opposes
the motion. For the reasons that follow, the motion will be denied.

FACTS
Davis filed her initial Complaint against Defendant on March 3, 2018 and
after Defendant moved to dismiss for lack of subject matter jurisdiction, filed an
amended complaint on June 5, 2018. (Filing Nos. 1 and 22). On June 19, 2018,
Defendant filed a Motion to Dismiss arguing that by fixing its parking lot, it vitiated
Davis’ standing to sue and mooted this case. The motion was denied. (Filing No.
49) Defendant’s answer to the Amended Complaint was filed on February 21,
2019, and a progression order was entered on March 26, 2019. Davis’s motion to
amend the amended complaint was filed on May 15, 2019. (Filing No. 60)

ANALYSIS
The time for filing an amended pleading as a matter of course has run
(Fed. R. Civ. P. 15(a)(1)), thus, this matter is governed by Fed. R. Civ. P.
15(a)(2), which provides:

In all other cases, a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.
In general, courts are encouraged to allow amendments liberally. (See
Shen v. Leo A. Daly Co., 222 F3d 472, 478 (8th Cir. 2000). However, the right to
amend a complaint is not absolute or without limits. See Sherman v. Winco
Fireworks Inc., 532 F.3d 709 (8th Cir. 2008). The Eighth Circuit Court of Appeals
has discussed the circumstances under which an amendment may be denied.
A district court can refuse to grant leave to amend a pleading only where it
will result in undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.
Dennis v. Dillard Dept. Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000) (internal
citations omitted), quoting Foman v. Davis, 371 U.S. 178 (1962).

The decision on whether to allow a party to amend its complaint is left to
the “sound discretion of the district court.” Popoalii v. Correctional Medical
Services, 512 F.3d 488 at 497 (8th Cir. 2008). “When late tendered amendments
involve new theories of recovery and impose additional discovery requirements,
appellate courts are less likely to hold a district court abused its discretion” in
denying a motion to amend. Id.
Davis asserts that “[t]he purpose of the Second Amended Complaint is to
make sure Defendant is on notice of all the architectural barriers Plaintiff
contends are present at the subject premises and/or to clarify Plaintiff’s
positions.” (Filing No. 60 at CM/ECF p. 2). In support of her motion, Davis argues
that this motion is timely under the Final Progression Order (Filing No. 56), her
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previous complaint withstood a motion to dismiss, and if granted, the amended
complaint would avoid “later conflict about what barriers are, or are not properly,
before the Court.” (Filing No. 60 at CM/ECF p. 2). Davis argues that the Second
Amended Complaint would not necessitate a change in the progression
schedule.
While timely under the court’s Rule 16 case management order, Plaintiff’s
motion to amend must nonetheless be analyzed under Rule 15. Paragraphs 17
and 39(e) of the proposed Second Amended Complaint would add wholly new
allegations that a particular ramp was too steep. (Filing No. 60-2 at CM/ECF p.
4). Paragraph 39(f) would add an allegation that “6 curb ramps near parking
spaces reserved as accessible parking spaces” had ramp flares that are too
steep. (Filing No. 60-2 at CM/ECF p. 11). Originally, Davis alleged she was
deterred from visiting the property in the future, but she now proposes to allege
that she “perceives she cannot access the premises on an equal and
independent basis.” (Filing No. 60-2 at CM/ECF p. 5, ¶ 24). As stated in the
proposed Second Amended Complaint, Davis allegedly encountered these
barriers on February 14, 2018. Plaintiff has not explained why these additional
factual allegations, known by the plaintiff when she filed this lawsuit on March 2,
2018, were not included in her initial complaint.

Defendant argues that significant time and expense have been spent
analyzing and addressing the issues pleaded in the Amended Complaint and it
will “undoubtedly suffer unfair prejudice with the addition of these new claims.”
(Filing No. 61 at CM/ECF p. 3). Defendant argues that Davis proposes a new
theory in paragraph 24 which may necessitate the need for additional motion
practice and that the proposed amendments will impact discovery deadlines and
may result in additional dispositive motions. (Filing No. 61 at CM/ECF p. 3).

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This court agrees with Defendant that the allegations regarding the
architectural barriers Davis allegedly encountered in February 2018 could have
been set forth with specificity at the time the original complaint was filed and if
overlooked then, could have been included in the Amended Complaint filed a
year ago. (Filing No. 22). Raising new theories and claims at this stage of the
litigation will prejudice the defendant by expanding the necessary discovery and
likely necessitating additional Rule 12 motion practice, thereby disrupting case
progression and unduly delaying the final resolution of this action.

Accordingly,
IT IS ORDERED that the Plaintiff’s Motion for Leave to Amend Her
Complaint (Filing No. 60) is denied.

Dated this 11th day of June, 2019.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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