Zoss v. Protsch et al, No. 4:2020cv04211 - Document 73 (D.S.D. 2023)
Court Description: ORDER denying 68 Motion to Strike 66 Amended Complaint in its entirety. Granting motion to strike in part and denying in part as detailed. Signed by U.S. District Judge Lawrence L. Piersol on 4/10/2023. (ARW)
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Zoss v. Protsch et al Doc. 73 Case 4:20-cv-04211-LLP Document 73 Filed 04/10/23 Page 1 of 6 PageID #: 996 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION FREDERICK M.ZOSS, Plaintiff vs. 4;20-cv-4211 ORDER GREG PROTSCH AND MUMFORD AND PROTSCH,LLP, Defendants Pending before the Court is Defendants' Motion to Strike Plaintiffs Amended Complaint,(Doc. 66), and an accompanying Motion for Attorneys' Fees.(Doc. 68). Plaintiff resists the Motion.(Doc. 70). Defendants have replied. (Doc. 72). For the following reasons the Court grants the Defendants' motion in part and denies it in part. BACKGROUND The Court has summarized the background to this case in several prior opinions. (Doc. 13,62, 63, 67). The case is an attomey malpractice action alleging malpractice and breach of fiduciary duty by Defendants in their representation of Plaintiff in connection with his sale of cattle. Plaintiff moved to amend the complaint,(Doc. 31), and submitted a proposed amended complaint.(Doc. 32-1). Defendants opposed the motion. (Doc. 44). The Court granted Plaintiffs motion and set a deadline for filing the amended complaint.(Doc. 63). Plaintiff failed to comply with the deadline and filed a proposed amended complaint approximately five weeks late.(Doc. 66). The current motion to strike by Defendants challenges admission ofthe Dockets.Justia.com Case 4:20-cv-04211-LLP Document 73 Filed 04/10/23 Page 2 of 6 PageID #: 997 complaint on timeliness grounds and because the amended version ofthe complaint does not conform to the proposed version. Defendants also seek attorneys' fees and costs in connection with this motion. (Doc. 69). LEGAL STANDARD District of South Dakota Local Rule 15.1 requires that a party submit a proposed amended version of a complaint when it moves for its admission. D.S.D. Civ. LR 15.1. The rule requires the moving party to file the clean original ofthe amended complaint within seven days. Id. The purpose ofthe rule is to enable the Court to assess the proposed amendments to determine whether they comport with the standards of Fed. R. Civ. P. 15. As a general proposition, once the time to file the clean pleading has expired, an extension oftime may be granted upon motion and for excusable neglect. Id. In this case. Plaintiff failed to make such a motion but did cite excusable neglect as the reason for the tardy filing. (Doc. 70,PgID 957). The Court will not penalize Plaintifffor counsels' failure to comply with the filing deadline by striking the amended complaint, given the lack of prejudice to the Defendants. See U.S. District Court, District of South Dakota Motions, Oppositions, and Replies—Motion for Leave to Amend,2008 WL 12791 (updated July 2022)(citing 6 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1484(3d ed., April 2022 update); Nilsen v. City ofMoss Point, Miss., 674 F.2d 379, 388 (5^^ Cir. 1982), on reh'g, 701 F.2d 556 (5*^ Cir. 1983)). The standard articulated in D.S.D. Civ. LR 7.1 anticipates that correction of punctuation, grammar, and spelling errors is acceptable. Likewise, because a party may move at any time to amend pleadings to conform to the evidence, correction of factual assertions based on developments during discovery is appropriate. Fed. R. Civ. P. 15(b)(2). The problem arises when counsel strays from the proposed amendments to add new material not contemplated by the Case 4:20-cv-04211-LLP Document 73 Filed 04/10/23 Page 3 of 6 PageID #: 998 proposed amendment. Because that is the situation in the case before the Court, a paragraph-byparagraph review ofthe proposed amended complaint,(Doc. 32-1), and revised proposed amended complaint,(Doc. 66, 71-1), is required. The Court must discern whether differences between the two are substantive or merely stylistic or grammatical corrections. The Court seeks to avoid prejudice to the Parties. See Bediako v. Stein Mart, Inc., 354 F.3d 835, 840 (8th Cir. 2004)(citing Bell v. Allstate Life Ins. Co., 160 F.3d 452,454(8th Cir. 1998)). See also Yankton Sioux Tribe v. U.S. Army Corps ofEngineers, 497 F.Supp.2d 985,988(D.S.D. 2007). ANALYSIS Defendants have challenged Plaintiffs amended complaint that appears at Doc. 66. In conjunction with the current motion. Plaintiff filed a red-lined version ofthe proposed amended complaint,(Doc. 32-1), with the changes it incorporated into its proposed revised amended complaint at Doc. 71-1. The latter version eases comparison of the two documents and the Court will conduct its review using Doc. 71-1. In reviewing Plaintiffs newest version of its Complaint,(Doc. 71-1), the Court makes the following determinations: Paragraphs 1-7 (Id., PglD 974-75)—^the changes from the originally submitted proposed amended complaint,(Doc. 32-1), are not substantive and merely correct grammar and other errors. Therefore, the language in Plaintiffs revised amended complaint,(Doc. 71-1), at those paragraphs is approved. Paragraph 8 (Id., PglD 975)—Plaintiffs allegation changes the nature ofthe claim and is disapproved. The language ofthe revised amended complaint,(Doc. 71-1), deviates firom the document the Court approved,(Doc. 32-1). Plaintiff must replace paragraph 8 with the language of the original proposed amended complaint.(Doc. 32-1). Case 4:20-cv-04211-LLP Document 73 Filed 04/10/23 Page 4 of 6 PageID #: 999 Paragraphs 9, 10 (Id., PgID 975)—approved. Paragraph 11 (Id., PgID 975)—Plaintiffs revision deviates from the Court's approval of Doc. 32-1 and is disapproved. The language ofthe original proposed Complaint must replace paragraph 11 of Doc. 71-1. Paragraph 12 (Id., PgID 975)—In part, Plaintiffs revised language corrects factual assertions and is based on Plaintiffs deposition. It is approved to the extent it clarifies Plaintiff had not registered the cattle. Plaintiffs Exhibit C,(Id., PgID 985), does not clearly support the remainder ofParagraph 12 and the language is disapproved. Paragraphs 13, 14 (Id., PgID 975-76)—Plaintiffs revised language is not a substantive change and is approved. Paragraphs 15, 16—^no change. Paragraph 17 (Id., PgID 976)—Plaintiffs revised language is not a substantive change and is approved. Paragraph 18 (Id. PgID 976)—Plaintiffs revised language is a substantive change and is disapproved. The language ofthe proposed amended complaint at Doc. 32-1 must be used. Paragraph 19—^no change Paragraph 20 (Id., PgID 977)—^Plaintiffs revised language is not a substantive change and is approved. Paragraph 21 (PgID 977)—Plaintiffs revised language is a substantive change and is disapproved. Plaintiff must replace this language vvith that ofthe original proposed amended complaint at Doc. 32-1. Paragraphs 22-25 (Id., PgID 977-78)—Plaintiffs revised language is not a substantive change and is approved. Case 4:20-cv-04211-LLP Document 73 Filed 04/10/23 Page 5 of 6 PageID #: 1000 Paragraph 26—no change. Paragraph 27,28 (Id., PgID 978)—Plaintiffs revised language deviates from the proposed amended complaint and is disapproved. The language ofthe proposed amended complaint at Doc. 32-1 must be used. Paragraphs 29, 30 (Id., PglD 978)—Plaintiffs revised language is a substantive change and is disapproved. The language ofthe proposed amended complaint at Doc. 32-1 must be used. The language in Counts 1-3,(Id., PglD 979-80), reflects the Court's grant ofthe motion to amend,(Doc. 63), with the following comments: Paragraph 31.(e) is a substantive addition and is disapproved; paragraph 32 is disapproved to the extent it adds language that does not appear in the corresponding paragraph of Doc. 32-1; paragraph 36 is a substantive addition and is disapproved; paragraph 33 and what should be paragraph 37 (currently appearing as paragraph 1)do not make substantive changes and are approved. CONCLUSION The Court declines to strike Plaintiffs amended complaint,(Doc. 66), in its entirety. Fed. R. Civ. P. 12(f). The pleading does not include "redundant, immaterial, impertinent, or scandalous matter." Id. The revised amended complaint fails to conform to the proposed amended complaint,(Doc. 32-1), however, and the changes indicated above must replace those in Plaintiffs revised version ofthe amended complaint,(Doc. 71-1). Neither counsel has justified the award of attorneys' fees in conjunction with this motion, and the Court therefore denies the motion for attomeys' fees. Accordingly,IT IS ORDERED Case 4:20-cv-04211-LLP Document 73 Filed 04/10/23 Page 6 of 6 PageID #: 1001 1. That Defendants' motion to strike Plaintiffs amended complaint,(Doc. 66), in its entirety is denied; 2. That Defendants' motion to strike is granted in part and denied in part as detailed above; 3. That Defendants' motion for attorneys' fees in conjunction with its motion to strike is denied. Dated this _^^^day of April, 2023. BY THE COURT: AmaUu .awrence L. Piersol United States District Judge ATTEST: MATTHEW W. THELEN,CLERK
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