Hofer v. Bennington Public School District

Filing 30

MEMORANDUM AND ORDER Plaintiff's motion for leave to file a Second Amended Complaint is granted. (Filing No. 25 ). On or before March 13, 2025, Plaintiff shall file the proposed Second Amended Complaint as a separate document in this case. (See Filing No. [25-1]). Ordered by Magistrate Judge Ryan C. Carson. (LRM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MITCHELL HOFER,
Plaintiff,

8:24CV398

vs.
MEMORANDUM AND ORDER
BENNINGTON PUBLIC SCHOOL
DISTRICT,
Defendant.

Plaintiff initiated this action on October 10, 2024, and the parties stipulated that
Defendant would file an answer or other responsive pleading on or before December 4,
2024. (Filing No. 7). Plaintiff filed an amended complaint on November 19, 2024 (Filing
No. 12) and Defendant filed a Motion to Dismiss on December 10, 2024. (Filing No. 13).
All briefing on the Motion to Dismiss was complete by January 13, 2025. This case is now
before the undersigned on Plaintiff’s Motion for Leave to File a Second Amended
Complaint filed on January 30, 2025. (Filing No. 25).
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party may
amend its pleading with opposing party’s written consent or with leave of the court. The
rule provides that “The court should freely give leave when justice so requires.”
The Supreme Court has directed that “this mandate is to be heeded” as long as there
is an “absence of any apparent or declared reason—such as 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, futility of amendment, etc.” Foman v. Davis, 371 U.S.
178, 182 (1962). Similarly, the Eighth Circuit has repeatedly held that
“[a]mendments [to pleadings] should be allowed with liberality.” Baptist Health v.
1

Smith, 477 F.3d 540, 544 (8th Cir. 2007) (second alteration in original) (quoting
Chesnut v. St. Louis County, 656 F.2d 343, 349 (8th Cir. 1981)).
Cont'l Cas. Co. v. Greater Omaha Packing Co., Inc., No. 8:14-CV-194, 2016 WL
11795814, at *1 (D. Neb. Jan. 15, 2016)
Plaintiff asserts the motion to amend was motivated by a “misunderstanding about
what information was in possession of Plaintiff’s counsel” after his previous counsel could
no longer represent him. (Filing No. 25). Plaintiff counsel asserts that the misunderstanding
did not come to light until he reviewed the briefing on the motion to dismiss with his client.
(Filing No. 28). Plaintiff does not seek to add claims, he only seeks to rearrange and add
factual allegations to the “Pressure Campaign” section of the complaint. (See Filing No.
25-1).
Defendant opposes the motion arguing Plaintiff improperly waited until the briefing
on the motion to dismiss was complete before opting to file a motion to amend. Defendant
argues a district court does not abuse its discretion by denying leave to amend where a
plaintiff receives notice of the possible deficiencies in his complaint yet makes a tactical
decision “to stand on and defend its original complaint.” Sevela v. Portfolio Recovery
Assocs., LLC, No. 8:18CV526, 2019 WL 2173738, at *2 (D. Neb. May 20, 2019).
However, in Sevela, the plaintiff did not attempt to amend the complaint “until after the
case [was] dismissed.” Id. at *2. The circumstances are distinguishable from this case
wherein the motion to dismiss was fully briefed for approximately two weeks before the
motion to amend was filed. The court has carefully reviewed the proposed Second
Amended Complaint and finds that amendment is not made in bad faith or with dilatory
motive.
Defendant argues it would be prejudiced by the filing of the Second Amended
Complaint because of the cost expended in filing and briefing the previous motion to
dismiss and the response to the motion to amend. Defendant’s futility argument overlaps
with the issues already before the court on the motion to amend. (“For the same reasons
set forth in Defendant’s opening and reply briefs in support of its motion to dismiss,
Plaintiff still fails to state a Title IV discrimination claim.” (Filing No. 26 at CM/ECF p.
5)). Because of the significant overlap with the issues previously raised in the motion to
dismiss, and the general rule that amendments to the pleadings are to be liberally permitted,
Plaintiff’s motion to amend will be granted. Defendant is free to address any deficiencies
it has identified in the plaintiff’s Second Amended Complaint by utilizing the provisions
in Fed. R. Civ. P. 12 or Fed. R. Civ. P. 56.
2

Accordingly,
IT IS ORDERED:
1) Plaintiff’s motion for leave to file a Second Amended Complaint is granted.
(Filing No. 25).
2) On or before March 13, 2025, Plaintiff shall file the proposed Second Amended
Complaint as a separate document in this case. (See Filing No. 25-1).
Dated this 6th day of March, 2025.
BY THE COURT:
s/ Ryan C. Carson
United States Magistrate Judge

3