United States District Court, N.D. Iowa, Western Division
January 7, 2015
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant
For Federal Deposit Insurance Corporation, as Receiver for Vantus Bank, Plaintiff: Maureen R Tobin, LEAD ATTORNEY, G Mark Rice, Whitfield & Eddy, PLC, Des Moines, IA; Stephen D Marso, Whitfield & Eddy, PLC, Des Moine, IA.
For Barry E Backhaus, Michael W Dosland, Michael S Moderski, Arlene T Curry, Gary L Evans, Ronald A Jorgenson, Jon G Cleghorn, Charles D Terlouw, Defendants: Daniel L Hartnett, LEAD ATTORNEY, Crary-Huff-Inkster-Sheehan-Ringenberg-Hartnett-Storm, Sioux City, IA; David A Tank, Megan Flynn, LEAD ATTORNEYS, William John Miller, Dorsey & Whitney, LLP, Des Moines, IA.
Ann Aiken, United States District Judge.
This case is before me on a motion (Doc. No. 98) by defendants and third-party plaintiffs Michael W. Dosland, Michael S. Moderski, Arlene T. Curry, Barry E. Backhaus, Gary L. Evans, Ronald A. Jorgensen, Jon G. Cleghorn, and Charles D. Terlouw (collectively, the defendants) for leave to amend their third-party complaint against The United States of America (United States). The United States has filed a resistance (Doc. No. 101) and the defendants have filed a reply (Doc. No. 107). No party has requested oral argument and, in any event, I find that the issues have been sufficiently addressed by the parties' written arguments such that oral argument is not necessary. N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.
The motion to amend is timely, as it was filed on December 2, 2014, the deadline for such motions. Doc. No. 79 at 2. Moreover, the proposed amendment (Doc. No. 98-2) does not include new claims against the United States. Instead, it expands upon and modifies various factual allegations concerning the only claim set forth in the original third-party complaint. The United States' sole argument against allowing the amendment is that it would be futile, meaning it could not survive a Rule 12 motion to dismiss. See In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007); Van Stelton v. Van Stelton, 904 F.Supp.2d 965, 969 (N.D. Iowa 2012).
Here, conveniently enough, a fully-briefed Rule 12 motion to dismiss the third-party complaint is already pending. See Doc. Nos. 63, 102, 111. Under these circumstances, it would make no sense to conduct a futility analysis concerning the proposed amended complaint. As such, I find that the motion (Doc. No. 98) for leave to amend should be granted, as follows:
1. The Clerk shall detach the proposed amendment (Doc. No. 98-2) from the motion and docket it under seal as the defendants' first amended third-party complaint and jury demand in this action.
2. The United States' pending motion to dismiss (Doc. No. 63) shall be deemed to apply to the first amended third-party complaint. Thus, no new responsive motion or pleading is required. However, the parties shall file supplemental briefs concerning the motion to dismiss, addressing the effect (if any) that the amended pleading has on the pending arguments. The following schedule will apply:
a. The United States shall file its supplemental brief on or before January 22, 2015.
b. The defendants shall file their responsive supplemental brief on or before February 5, 2015.
c. The United States may file a supplemental reply brief on or before February 13, 2015.
IT IS SO ORDERED.