United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Fred Nekouee's
Motion for Leave to File First Amended Complaint (Doc. 31).
Defendant LVP DePaul, LLC has filed a memorandum in
opposition to the motion. (Doc. 32).
filed his initial complaint on May 8, 2017, alleging various
violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12181 et
seq., at a shopping plaza owned by Defendant.
Specifically, Plaintiff alleged ADA violations in the parking
lot and in the interior of a Panera Bread restaurant. At a
Rule 16 Scheduling Conference held on November 9, 2017,
counsel for the parties advised the Court that the Panera
Bread restaurant described in the Complaint had been closed
and its business operations had been moved to a new location.
The Court issued an initial case management order stating
that all discovery in the case was stayed pending a ruling on
the motion to dismiss and stating that the parties were
required to file supplemental briefs to address how the
change in location of the Panera Bread restaurant would
affect the pending motion to dismiss. In Defendant's
supplemental brief, Defendant pointed out that because the
Panera Bread restaurant described in the Complaint was no
longer in operation, Plaintiff could not show a likelihood of
future injury and thus could not establish standing.
Plaintiff also argued that all of the alleged violations
related to the Panera Bread restaurant in the Complaint were
moot. In Plaintiff's supplemental brief, Plaintiff
indicated that he was seeking an inspection of the new Panera
Bread restaurant, a request Defendant opposed. On December
19, 2017, the Court held a telephone conference with counsel
for the parties to discuss the status of the pending motion
to dismiss and Plaintiff's request for discovery.
December 26, 2017, Plaintiff filed his Motion for Leave to
File First Amended Complaint. In the motion and attached
exhibits, Plaintiff indicates that on December 20, 2017, he
visited and patronized the new Panera Bread restaurant. The
proposed First Amended Complaint omits allegations related to
the no-longer-existent Panera Bread restaurant and includes
allegations of ADA violations at the new Panera Bread
restaurant, as well as allegations related to the parking
Rule 15(a)(2) of the Federal Rule of Civil Procedure,
Plaintiff may amend his complaint “only with the
opposing party's written consent or the court's
leave.” Fed.R.Civ.P. 15(a)(2). The Court “should
freely give leave when justice so requires.”
Id. “A district court appropriately denies the
movant leave to amend if ‘there are compelling reasons
such as undue delay, bad faith, or dilatory motive, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility
of the amendment.'” Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008) (quoting
Moses.com Sec., Inc. v. Comprehensive Software Sys.,
Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)).
Court finds that justice requires permitting Plaintiff leave
to amend his complaint. It is undisputed that circumstances
have changed since the original complaint was filed, and the
proposed First Amended Complaint addresses that change by
replacing the allegations related to the no-longer-existent
Panera Bread restaurant with allegations related to the
Panera Bread restaurant that is currently in operation. The
First Amended Complaint provides clarity regarding the issues
actually in dispute in this lawsuit, which will place the
Court in a better position to develop a scheduling order,
resolve discovery disputes, and evaluate dispositive motions.
In addition, this litigation is in its earliest stages, and
this amendment is well within the parties' own jointly
proposed deadline for amendment of pleadings-March 1, 2018.
See Doc. 20.
addition, Defendant has not shown any undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies,
futility, or undue prejudice to Defendant that would justify
denying leave to amend. The arguments Defendant offers in
opposition to the motion for leave to amend are unpersuasive.
Defendant points out that in a telephone status conference
with the Court on December 19, 2017, Plaintiffs counsel
stated that he was not seeking leave to file an amended
complaint, yet Plaintiffs counsel sought such leave a week
later. However, Defendant does not explain how Plaintiffs
counsel's change of position prejudiced it in any way.
Defendant also points out that although Plaintiffs counsel
stated at the status conference that he was not seeking an
inspection of the new Panera Bread restaurant location,
Plaintiff visited and inspected the new Panera Bread
restaurant the next day. Again, however, Defendant does not
explain how those facts prejudiced Defendant or why those
facts would justify denying a request for leave to amend the
of the above reasons, IT IS HEREBY ORDERED
that Plaintiffs Motion for Leave to File First Amended
Complaint (Doc. 31) is GRANTED.
IS FURTHER ORDERED that Defendant's Motion to