United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Leave to File Fourth Amended Complaint .
December 2014, Plaintiffs Steve Futrell and David Gornstein
have filed this action against Defendant eRate Program, LLC,
(“eRate”) and 36 school districts, alleging
Defendants violated the False Claims Act, 31 U.S.C §
3729, when applying for federal funding. On April 13, 2016,
Plaintiffs amended their Complaint for the first time. In
August 2016, this Court dismissed the First Amended Complaint
on Defendants' motion and granted Plaintiffs leave to
file a second amended complaint, stating the amended
complaint lacked in specificity and did not meet the pleading
standard required by the Federal Rules of Evidence 9(b). In
September 2016, Plaintiffs filed their Second Amended
September 11, 2017, Defendants produced a list of all of
Defendants' clients while Plaintiffs were employed with
Defendant eRate. Plaintiffs then filed a Motion to Compel
, asking the Court to order Defendants to produce files
for all of eRate's clients. The Court held a hearing on
the Motion to Compel, and at that hearing, Plaintiffs stated
they did not have the client list and objected to providing
the additional information with respect to all school
districts not originally named as defendants. This Court
asked Defendants to show Plaintiffs where in discovery they
had provided that list. This Court ultimately ordered
Plaintiffs could only seek requested information with respect
to the 36 clients that were originally included as defendants
in this action as these are the school districts Plaintiffs
claim to have “direct personal first-hand
knowledge” that violated competitive bidding
requirements under federal law.
same hearing, this Court also heard argument relating to
Plaintiffs' Motion to File Third Amended Complaint .
Plaintiffs sought to include Missouri law claims it had
previously included in a case Plaintiffs filed against eRate
and Plaintiffs' supervisor in state court. That motion
was granted in part and denied in part. Plaintiffs filed
their Third Amended Complaint on February 28, 2018.
same day, Plaintiffs filed a Motion for Leave to File Fourth
Amended Complaint . Plaintiffs seek to add the following
sentence to the Complaint, “Additional school districts
are listed and attached as Ex. A” and add the list they
were provided on September 11, 2017, which includes every
client of eRate, over one thousand schools, as an exhibit.
may amend its answer within twenty days after it is served.
Fed.R.Civ.P. 15(a). Otherwise, a party may amend the answer
only by leave of court or by written consent of the adverse
party. Id. The Court has wide discretion whether or
not to grant leave to amend. Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330-32, 91 S.Ct.
795, 28 L.Ed.2d 77 (1971). Plaintiffs are not given an
“absolute or automatic right” to amend their
Complaint. U.S. ex rel. Lee v. Fairview Health Sys.,
413 F.3d 748, 749 (8th Cir. 2005). Factors to consider in
determining whether leave to amend should be granted include,
but are not limited to: 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. Moses.com Securities, Inc.
v. Comprehensive Software Sys., Inc., 406 F.3d 1052,
1065 (8th Cir. 2005). Delay in seeking to amend, alone, is an
insufficient justification to deny leave. Prejudice to the
nonmovant must also be shown. Bell, 160 F.3d at 455
(citing Buder v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 644 F.2d 690, 694 (8th Cir.1981)). Any
prejudice to the nonmoving party must be weighed against the
prejudice to the moving party by not allowing the amendment.
have had eRate's client list since September 11, 2017.
Plaintiffs filed their Motion for Leave to File Third Amended
Petition  on January 1, 2018. Thus, when asking this
Court to amend their complaint for a fourth time, Plaintiffs
had all of the information they now seek to include and
nothing prevented them from incorporating the changes in
their Proposed Fourth Amended Complaint into their Third
Amended Complaint. This Court will not continue to grant
motions to amend based on information already available to
plaintiffs when plaintiffs filed previous motions to amend,
especially when discovery is well underway. See
Moses.com, 406 F.3d at 1066. Further, it is unclear what
purpose adding this client list to the amended complaint
would serve. All defendant school districts have been
terminated in this action, and this Court has informed
Plaintiffs they can subpoena any of the school districts
included in this list to obtain the information Plaintiffs
sought in their Motion to Compel . This Court will not
allow Plaintiffs' to circumvent its order by filing
another of numerous motions to amend.
IT IS HEREBY ORDERED Plaintiffs' Motion
for Leave to File a Fourth ...