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Catipovic v. Turley

United States District Court, Eighth Circuit

November 20, 2013

BRANIMIR CATIPOVIC, Plaintiff,
v.
MARK TURLEY, RONALD FAGEN, and FAGEN, INC., Defendants.

ORDER

LEONARD T. STRAND UNITED STATES MAGISTRATE JUDGE

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 2
II. PROCEDURAL HISTORY ............................................................... 2
III. THE PRIOR RULING ..................................................................... 3
IV. THE RENEWED MOTION .............................................................. 5
V. ANALYSIS ................................................................................... 5
I. Applicable Law ...................................................................... 5
II. Does Good Cause Exist For The Untimely Amendment? ................... 7
III. Would The Amendment Be Allowable Under Rule 15(a)? ................ 11
A. Futility ...................................................................... 11
B. Undue Prejudice .......................................................... 15
VI. CONCLUSION ............................................................................ 17

I. INTRODUCTION

This case is before me on a renewed motion (Doc. No. 86) by plaintiff Branimir Catipovic (Catipovic) for leave to amend his complaint. Defendants Mark Turley (Turley), Ronald[1] Fagen (Fagen) and Fagen, Inc., have filed resistances (Doc. Nos. 91, 93) and Catipovic has filed a reply (Doc. No. 96). No party has requested oral argument and, in any event, I find that oral argument is not necessary. N.D. Ia. L.R. 7(c). The motion is fully submitted.

II. PROCEDURAL HISTORY

Judge Scoles summarized the procedural history of this case as follows in a prior order:

On December 29, 2011, Plaintiff Branimir Catipovic filed his initial complaint seeking damages from Defendants Mark Turley, Ronald Fagen, and Fagen, Inc. According to the complaint, Catipovic is a medical doctor, a citizen of Croatia, and resides in Brookline, Massachusetts. Turley is a citizen of Ireland and, according to the complaint, a resident of Dublin, Ireland. Fagen is a United States citizen residing in Minnesota. Fagen, Inc. is a Minnesota corporation headquartered in Granite Falls, Minnesota.
Catipovic became interested in ethanol production while working as a medical doctor at the VA Hospital in Mason City, Iowa. The complaint asserts that Catipovic and Defendants reached an agreement to build ethanol plants in Eastern Europe, beginning with a plant in Croatia. The Croatian ethanol plant was not developed, however, and Defendants -acting without Catipovic - ultimately built an ethanol plant in Hungary. In his initial complaint, Catipovic sought damages for breach of contract (Count I) and unjust enrichment (Count II).
On April 12, 2012, Catipovic filed an amended complaint, stating that he is a naturalized citizen of the United States. In all other respects, the amended complaint is identical to the initial complaint. Turley filed a motion to dismiss, asserting the Court lacked personal jurisdiction over him. Defendants Fagen filed a motion to dismiss, claiming improper venue and failure to state a claim. Defendants' motions were denied in a Memorandum Opinion and Order filed on June 8, 2012. See docket number 25. Defendants then answered the amended petition, denying the material allegations and asserting certain affirmative defenses.
Meanwhile, on May 15, 2012, the Court adopted a Scheduling Order and Discovery Plan submitted by the parties. Among other things, the parties agreed to a November 12, 2012 deadline for amending the pleadings, and a May 10, 2013 deadline for completion of discovery, with dispositive motions to be filed by June 10, 2013. In reliance on those deadlines, a jury trial was scheduled before Judge Mark W. Bennett on October 28, 2013.
On April 23, 2013 - after certain discovery skirmishes - Catipovic filed an unopposed motion for extension of the scheduling order deadlines. On Apri1 30, the Court entered an Order establishing new pretrial deadlines, including a May 29, 2013 deadline for amending the pleadings. See docket number 58. In addition, the trial previously scheduled for October 28, 2013 was continued to April 14, 2014.

Doc. No. 63 (the Prior Ruling) at 2-3.

III. THE PRIOR RULING

In the Prior Ruling, Judge Scoles denied Catipovic’s motion for leave to amend his complaint. That motion was filed May 29, 2013, which was the deadline for motions to amend. Catipovic requested leave to file a second amended complaint that would have added a claim of fraud against Turley as Count III. Turley resisted on grounds that the proposed amendment was futile and that allowing it would cause undue prejudice. The “futility” argument was two-pronged. Turley alleged that the proposed new fraud claim failed to meet the heightened pleading requirements imposed by Federal Rule of Civil Procedure 9(b)[2] and, in any event, that it was barred by the applicable statute of limitations.

Judge Scoles agreed with Turley that the proposed new claim failed to satisfy Rule 9(b). Specifically, he found that the proposed amendment did not adequately plead facts supporting Catipovic's allegation that Turley knew the alleged representations were false when they were made. Prior Ruling at 9-13. He wrote:

The Court concludes that while Turley may have breached an agreement with Catipovic, nothing in Catipovic's allegations supports an inference of fraudulent intent. Catipovic's claim that "Turley knew his representations were false" at the time they were made is conclusory and based on speculation. Catipovic has not pled any facts which would support a reasonable inference that Turley did not intend to perform when the promises were initially made. Accordingly, Count III of the proposed second amended complaint fails to meet the heightened ...

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