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

Filing 75

MEMORANDUM AND ORDER - The objection filed by the plaintiff, Filing No. 64 , is sustained. The memorandum and order of the magistrate judge, Filing No. 63 , is overruled. The motion to amend, Filing No. 60 , is granted. Plaintiff shall have 14 days from the date of this order to file her amended complaint. Ordered by Senior Judge Joseph F. Bataillon. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

MELANIE DAVIS,
Plaintiff,
vs.

8:18CV101
MEMORANDUM AND ORDER

AK-SAR-BEN VILLAGE, L.L.C.,
Defendant.

This matter is before the Court on the objection to the magistrate’s findings and
recommendation, Filing No. 64. Plaintiff objects to the memorandum and order, Filing
No. 63, wherein the magistrate judge determined that plaintiff’s motion for leave to amend
her complaint should be denied. This case arises from violations of the American With
Disabilities Act, 42 U.S.C. § 12181, 3t seq. Plaintiff filed a complaint on March 3, 2018
and filed an amended complaint June 5, 2018 after defendant moved to dismiss for lack
of subject matter jurisdiction. See Filings Nos. 1 and 22. Defendant filed a motion to
dismiss on the basis that it had fixed its alleged violations, thus arguing the case is moot.
The motion was denied. Filing No. 49. Defendant answered and on May 15, 2019,
plaintiff filed a motion to amend her complaint. Filing No. 60. The magistrate judge denied
the motion, Filing No. 63, and the plaintiff objects. Filing No. 64.
A magistrate judge’s authority over nondispositive pretrial matters is governed by
28 U.S.C. § 636(b)(1)(A). Gomez v. United States, 490 U.S. 858, 873-74 (1989); see
also Fed. R. Civ. P. 72(a).

On review of a decision of the magistrate judge on a

nondispositive matter, the district court may set aside any part of the magistrate judge's
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order that it finds is clearly erroneous or contrary to law. 28 U.S.C. § 636 (b)(1)(A); Fed.
R. Civ. P. 72(a); see Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007). (“A
district court may reconsider a magistrate judge's ruling on nondispositive pretrial matters
where it has been shown that the ruling is clearly erroneous or contrary to law.”) A
magistrate is afforded broad discretion in the resolution of nondispositive discovery
disputes. Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 764 (8th Cir. 1995).
The magistrate judge concluded that (1) plaintiff’s time for amending as a matter
of course had run; and (2) Fed. R. of Civ. P. 15(2) requires leave of court. The magistrate
judge determined that the proposed second amended complaint would add new
allegations regarding the depth and steepness of the ramp, finding that these additional
factual allegations were not included in the previous complaints. The magistrate judge
found that such additions would impact discovery and might require additional dispositive
motions. For these reasons, the magistrate judge denied the motion to amend the
complaint.
The plaintiff objects, arguing that leave should be freely given under Fed. R. Civ.
P. 15(2). To date, argues plaintiff, neither party has issued written discovery or conducted
depositions.

Plaintiff’s motion to amend was timely filed in accordance with the

progression order in which the parties stipulated and as entered by the magistrate judge.
Plaintiff argues that permitted the amendment will not unduly expand discovery or delay
the case. Further, plaintiff argues she delayed her motion to amend as the parties
discussed settlement.
Defendant argues the amendment alleged a new theory and new factual
allegations. Defendant contends it has spent significant time and expense both analyzing

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the claims and then making structural changes to its property. See, e.g. Filing No. 30-1 30-4; 30-8; 48-1; Filing No. 49, p. 9.
The Court notes first that the plaintiff was within the deadline for moving to file an
amended complaint under the progression order. Filing No. 56 at 1. The Court finds that
Fed. R. Civ. P. 15 says that leave should be freely given. It does not appear that the
parties have spent much time on discovery at this point in the case. Plaintiff has stated
that this amendment will not unduly expand discovery or delay the case. Further, the
Court determines that the amendment merely extends the allegations and violations that
were originally filed in plaintiff’s initial complaint. For these reasons, the Court will sustain
the objections.
THEREFORE, IT IS ORDERED THAT:
1. The objection filed by the plaintiff, Filing No. 64, is sustained;
2. The memorandum and order of the magistrate judge, Filing No. 63, is
overruled; and
3. The motion to amend, Filing No. 60, is granted. Plaintiff shall have 14 days from
the date of this order to file her amended complaint.

Dated this 11th day of October, 2019.

BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

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