Wubben v. Yankton County, South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DENISE WUBBEN,
Plaintiff,
vs.
YANKTON COUNTY, SOUTH DAKOTA,
AND DAN KLIMISCH, IN HIS
INDIVIDUAL CAPACITY,
Defendants.
4:19-CV-04109-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND COMPLAINT
Plaintiff, Denise Wubben, moves for leave to amend her complaint to add
Gary Swensen, in his individual capacity, as a defendant and a claim for
defamation against Swensen. Docket 12. Defendants, Yankton County, South
Dakota and Dan Klimisch, oppose the motion. Docket 16. Defendants contend
the amendment would cause prejudice and confusion at trial. Id. at 3-5.
Defendants also contend the defamation claim against Swensen belongs in a
separate action because it is unrelated to the present case. Id. at 5. For the
reasons stated below, the court grants Wubben’s motion to amend.
BACKGROUND
The facts as alleged in the proposed amended complaint are as follows:
Wubben was employed by Yankton County as an administrator and
secretary for the Planning and Zoning office beginning July 1, 2013. Docket 12-
1 ¶ 13. Based on Wubben’s job performance, she was promoted to County
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Deputy Zoning Administrator on April 1, 2018. Id. ¶¶ 13-14. Wubben was
terminated from her position at Yankton County on February 22, 2019. Id.
¶ 20.
While employed as County Deputy Zoning Administrator, Wubben’s
duties included assisting citizens with applications for conditional use permits
in accordance with Yankton County Zoning Ordinances. Id. ¶ 16. During the
months before Wubben’s termination, county permits granted for construction
of Concentrated Animal Feeding Operations (CAFOs) were a controversial
public concern in Yankton County. Id. ¶ 15. Wubben alleges this led to the
election of three County Commissioners, including Dan Klimisch, who were
opposed to the CAFOs. Id. Wubben also alleges that in the fall of 2018,
Yankton County Commissioner, Joe Healy, told her and Yankton County
Zoning Administrator, Pat Garrity, that “there was a mandate by the new
commissioners to get rid of [Wubben and Garrity.]” Id. ¶ 26.
On February 14, 2019, Wubben was present at a meeting with Klimisch,
Healy, and Garrity. Id. ¶ 17. During the meeting, Wubben objected to a
disciplinary procedure implemented against Garrity. Id. Wubben alleges that in
response to her objection, Dan Klimisch “stuck his finger in [her] face and
angrily said ‘you have crossed the line.’ ” Id. Dan Klimisch then left the
meeting. Id. ¶ 18. At the end of the meeting, Healy instructed Wubben and
Garrity to spend less time talking with CAFO conditional use permit applicants.
Id. Wubben contends this instruction was contrary to the conduct required for
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employees of Yankton County, as prescribed by the Yankton County Personnel
Handbook (Handbook). Id. ¶ 33.
On February 19, 2019, Wubben attended a Yankton County Commission
meeting in an official capacity to speak regarding an issue separate from the
CAFO permits. Id. ¶ 19. After speaking, Wubben remained at the meeting in an
individual capacity. Id. At the end of the meeting, members of the public asked
questions regarding Healy’s instruction to Wubben and Garrity, and asked
Wubben to stand up and provide her perspective. Id. Dan Klimisch directed
Wubben to come to the podium; however, while Wubben was speaking at the
podium, Dan Klimisch told her several times “to sit down or the sheriff would
be summoned.” Id. Wubben alleges she did not complete her explanation at the
podium due to Dan Klimisch’s “intimidation and threat” made in violation of
her First Amendment rights under the United States Constitution and the
South Dakota Constitution. Id.
Wubben alleges that days later, on February 22, 2019 the Yankton
County Commissioners terminated her during a special emergency executive
session, in violation of South Dakota’s open meeting laws under SDCL § 1-51-
1. Id. ¶ 20. Wubben alleges the Yankton County Commission realized this
violation and reconvened for a special meeting on February 25, 2019, during
which the Commissioners again voted to terminate Wubben. Id. ¶ 23. After
each occasion, Wubben first learned of her terminations while reading the local
public newspaper the following day. Id. ¶¶ 22-23.
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On February 28, 2019, Wubben received a letter stating her employment
with Yankton County was terminated. Id. ¶ 24. The letter was signed by
Yankton County States Attorney, Robert Klimisch, and dated February 25,
2019. Id. ¶¶ 24-25. The letter provided no reason for Wubben’s termination. Id.
¶ 25. 	Wubben alleges she was not given any notice of disciplinary action, any
opportunity to provide an explanation or defense on her own behalf, nor any
hearing before the County Commission. Id. ¶¶ 25, 31. Wubben contends these
were all in violation of the course of disciplinary conduct that was required by
the Handbook. Id. ¶¶ 25-32. After her termination with Yankton County,
Wubben pursued many other similar jobs but has been unable to obtain
employment earning equal pay and benefits to those she had prior to her
termination. Id. ¶¶ 34-36. Wubben alleges the wrongful termination,
defendants’ retaliation, and other surrounding circumstances have caused her
anxiety and emotional distress. Id. ¶¶ 21, 46. Wubben also alleges that
members of the public approach her to inquire about her termination “on a
weekly, if not daily, basis.” Id. ¶ 37.
Yankton County Commissioner, Gary Swensen, posted comments about
Wubben’s termination to his public Facebook page. Id. ¶ 38. Wubben’s
amended complaint alleges Swensen’s first post was published on or about
May 17, 2019 and stated:
I was told I have not seen it yet But a video of Denise Webben [sic]
is on a County Web Site showing her Antic and how we fired
her..Stating to the County Employees of the South Dakota County
..If 	you 	want 	to 	get 	FIRED 	Just 	act 	like 	this 	Yankton 	County
Employee ..I will keep looking for ithe [sic] Video. Web Site ….
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Id. The second post was published on or about November 4, 2019 and stated:
You forgot about the Eye in the Sky Camera that we have video of
you your wife and Denise Webben [sic] in your office paying on the
Computers while you supposed to be Sick…
That’s right The County Commissioner Fired Denise Webuen [sic]
also 	for 	her 	Violent 	Behavior 	and 	this 	was 	during 	a 	County
Commission 	Meeting…ON 	TAPE 	ALSO…There 	has 	been 	some
Strange goings…on for a long time in the Planning and Zoning
office…While Yankton County keeps Building on Expire and No
Permits that we’re [sic] given out without the Knowledge of the
Chairman……That’s Right The Yankton County Commission also
Fired 	that 	temporary 	P 	and 	Z 	guy 	for 	doing 	that 	.Plus 	other
reasons…Gary 	Swensen 	Yankton 	County 	Commissioner……OH..
THERE IS MUCH MORE TO THIS…Hope you come to the Meeting
this Tuesday it should be a Whopper 	……November 5th 6 p.m.
Sharp….2019…..
Id.
Wubben’s original complaint alleges five causes of action including:
deprivation of property rights without due process of law, denial of liberty
interest without due process of law, retaliation for exercise of First Amendment
rights, wrongful termination under state law, and request for an injunction to
reinstate her employment with Yankton County in a department other than
Planning and Zoning. Docket 1 ¶¶ 37-73. Wubben now moves to amend her
complaint to include a claim for defamation under state law and to add Gary
Swensen as a defendant. Docket 12 ¶¶ 76-82. Yankton County and Dan
Klimisch oppose the motion to amend, contending the amended claim is
unrelated to the existing claims and would cause prejudice to the defendants
and confusion at trial. Docket 16 at 3-6.
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LEGAL STANDARD
“[A] party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 of the Federal
Rules of Civil Procedure states that leave to amend a pleading should be given
“freely” and “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Supreme
Court has held:
In the absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to 	cure deficiencies by 	amendments previously
allowed, 	undue 	prejudice 	to 	the 	opposing 	party 	by 	virtue 	of
allowance of the amendment, futility of amendment, etc.—the leave
sought should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Roberson v. Hayti Police
Dep’t, 241 F.3d 992, 995 (8th Cir. 2001). “The Eighth Circuit Court of Appeals
takes a ‘liberal viewpoint towards leave to amend’ and leave ‘should normally
be granted absent good reason for a denial.’ ” Libertarian Party of S.D. v. Krebs,
312 F.R.D. 523, 525 (D.S.D. 2016) (quoting Popp Telcom v. Am. Sharecom, Inc.,
210 F.3d 928, 943 (8th Cir. 2000)). “Likelihood of success on the new claim or
defenses is not a consideration for denying leave to amend unless the claim is
clearly frivolous.” Becker v. Univ. of Neb., 191 F.3d 904, 908 (8th Cir. 1999).
DISCUSSION
I. 	Undue Delay and Bad Faith
The court first considers whether a motion to amend was made with
undue delay or bad faith. See Foman, 371 U.S. at 182. The language of Rule
15(a) does not specify a time in which a party can seek leave to amend from the
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court. See Fed. R. Civ. P. 15(a). Permission to amend under Rule 15(a) has
been granted at a wide variety of litigation stages, including during and after
trial. See Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242 (8th Cir. 1971)
(holding the district court was within its discretion when granting a plaintiff’s
motion to amend after the close of testimony at trial). “[I]n keeping with the
purpose of Rule 15(a), which is to facilitate a determination of the action on its
merits, a motion to amend should be made as soon as the necessity for altering
the pleading becomes apparent.” Arthur R. Miller et al., 6 Federal Practice and
Procedure § 1488 (3d ed. 2020).
Here, the social media posts alleged in the amendment were published
on May 17, 2019 and November 4, 2019. Docket 12 ¶ 38. Wubben filed her
complaint in this matter on June 27, 2019. Docket 1 at 18. Thus, the
November 2019 post did not exist at the time Wubben filed her original
complaint in this action. Also, Wubben would not have known of the continued
pattern of posting by Swensen until after the date on which she filed her initial
complaint.
Wubben’s motion to amend was filed on February 3, 2020. Docket 12 at
1. This was before the amendment deadline of February 7, 2020 set forth in the
court’s scheduling order. Docket 11 ¶ 2. No depositions have been taken and
minimal written discovery occurred prior to the filing of this amendment. See
Docket 13 at 1. Thus, the amendment request arises within the deadline set by
this court and at an early stage in the discovery process. Yankton County and
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Klimisch do not argue Wubben’s amendment is made with undue delay or bad
faith. See Docket 16.
Based on the proximity of the posts’ publication dates to the
commencement of this action, the timeliness of the motion, and the lack of
evidence on the record to the contrary, the court finds there is no bad faith or
dilatory motive in Wubben’s motion to amend.
II. 	Futility of the Amendment
The court may also consider whether an amendment is futile. See
Foman, 371 U.S. at 182. In evaluating a motion to amend for futility, an
amendment is futile if “the amended complaint could not withstand a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zutz v.
Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (internal quotation omitted). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, ‘to state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Count VI of the proposed amended complaint contains a new claim and
new defendant: a defamation claim against Swensen. Docket 12-1 ¶¶ 76-82. In
her proposed amended complaint Wubben alleges that Swensen posted false
comments regarding Wubben, her employment, and her firing to his personal
Facebook page and that the comments are “highly offensive to a reasonable
person.” Id. ¶ 79. Swensen’s Facebook page is publicly accessible and “allows
anyone from the pubic and community to read his published posts and
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comments.” Id. ¶ 78. Wubben also claims Swensen’s conduct “was oppressive,
fraudulent and/or malicious,” and “done intentionally, willfully, and/or
wantonly.” Id. ¶ 80. As a result of the alleged conduct, Wubben contends her
reputation and good name have been damaged in the community. Id. ¶ 82.
Under South Dakota law, defamation is either libel or slander. SDCL
§ 20-11-2; see also SDCL § 20-11-3 (defining libel) and SDCL § 20-11-4
(defining slander). A claim for defamation under South Dakota law must
suggest “the alleged defamatory language refers to some ascertained or
ascertainable person and that person must be the plaintiff.” Brodsky v. Journal
Pub. Co., 42 N.W.2d 855, 857 (S.D. 1950). The alleged statement must also be
established as “false and unprivileged publication(s)” to be actionable. See
SDCL §§ 20-11-2 through 4. “A statement is actionable if it implies a false
assertion of objective fact,” which includes an opinion that implies a false
assertion of an objective fact. Paint Brush Corp., Parts Brush Div. v. Neu, 599
N.W.2d 384, 396-97 (S.D. 1999). If the opposing party claims privilege, malice
is relevant to determine whether the privilege applies. Id. at 398. “Malice”
means that the defendant “actually knew that the defamatory statements were
false or acted with reckless disregard of the truth.” Nelson v. WEB Water Dev.
Ass’n, Inc., 507 N.W.2d 691, 697 (S.D. 1993) (citing N.Y. Times Co. v. Sullivan,
376 U.S. 254, 286 (1964)).
Swensen’s posts as alleged and quoted in Wubben’s amended complaint
contain references to Wubben by name, and even though her name is
occasionally misspelled, it is clear to the reader Swensen is referring to
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Wubben in the posts. Docket 12 ¶ 38. Wubben alleges the posts were created
with malice or reckless disregard as to the falsity of the comments, and
defendants, Yankton County and Klimisch, do not contend a privilege applies.
Id. ¶ 80. When taken as a whole with the other claims contained within the
amended complaint, particularly those alleging retaliation, it appears plausible
the posts were made with malice or reckless disregard. See Iqbal, 556 U.S. at
678.
Read in the light most favorable to Wubben, the statements published by
Swensen in his Facebook posts contained false information, were publicly
available, and were intended to negatively affect the public’s opinion of
Wubben, specifically in relation to her employment with Yankton County. At
this stage, this is sufficient to state a claim for defamation under South Dakota
law that survives a motion to dismiss. And Defendants do not argue that the
amendment is futile. Thus, Wubben’s proposed amendment is not futile. See
Zutz, 601 F.3d at 850.
III. 	Undue Prejudice to the Defendants
The court next considers whether the proposed amendment causes
undue prejudice to the opposing party. See Foman, 371 U.S. at 182. Yankton
County and Dan Klimisch argue Wubben’s proposed amendment would cause
undue prejudice because it adds an unrelated claim against a separate
defendant and would add confusion to trial. Docket 16 at 3-4. Undue prejudice
exists where:
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[T]he amendment substantially changes the theory on which the
case has been proceeding and is proposed late enough so that the
opponent would be required to engage in significant new preparation
. . . . In a similar vein, if the court determines that the proposed
amendment would result in defendant being put to added expense
and the burden of a more complicated and lengthy trial or that the
issues raised by the amendment are remote from the other issues in
the case and might confuse or mislead the jury, leave to amend may
be denied.
Miller et al., supra, § 1487 (footnotes omitted). Determining whether prejudice
will occur “entails an inquiry into the hardship to the moving party if leave to
amend is denied, the reasons for the moving party failing to include the
material to be added in the original pleading, and the injustice resulting to the
party opposing the motion should it be granted.” Id. “When late tendered
amendments involve new theories of recovery and impose additional discovery
requirements, appellate courts are less likely to hold a district court abused its
discretion.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
“ ‘The burden of proof of prejudice is on the party opposing the
amendment.’ ” Roberson, 241 F.3d at 995 (quoting Sanders v. Clemco Indus.,
823 F.2d 214, 216 (8th Cir. 1987)). In Roberson, the Eighth Circuit reversed
the district court’s denial of the plaintiff’s motion to amend where the plaintiff
sought to amend her complaint to add a new defendant and new claims
because the motion was timely brought, the defendants had more than a year
and a half to prepare a defense, and the defendants held the bulk of the
evidence that would be required to defend itself against the new claims. Id. at
996.
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A. 	Relation of the Proposed Amendment to the Initial Complaint
Yankton County and Dan Klimisch contend Wubben’s amended claim
would be prejudicial because it “do[es] not arise from the original facts of her
initial Complaint” and belongs in a separate state court case. Docket 16 at 3.
The proposed claim for defamation against Swensen must be sufficiently
related to the claims and facts set forth in the original complaint to establish
supplemental jurisdiction under 28 U.S.C. § 1367. Supplemental jurisdiction
exists when the district court has original jurisdiction over at least one claim in
the action, and the other claims “are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Under
28 U.S.C. § 1367(c), there are four exceptions where a district court can decline
to exercise supplemental jurisdiction, even if the requirements of § 1367(a) are
established. See 28 U.S.C. § 1367(c).
Supplemental jurisdiction exists where:
The state and federal claims . . . derive from a common nucleus of
operative fact. But if, considered without regard to their federal or
state character, a plaintiff’s claims are such that he would ordinarily
be expected to try them all in one judicial proceeding, then . . . there
is power in the federal courts to hear the whole.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966) (emphasis
omitted). “In practice, § 1367(a) requires only that the jurisdiction-invoking
claim and the supplemental claim have some loose factual connection[;]”
however, there must be more than “a mere causal relationship between the two
claims[.]” Richard D. Freer, 13D Federal Practice and Procedure § 3567.1 (3d
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ed. 2020). “This standard is broad and fact-specific, and should be applied with
a pragmatic appreciation of the efficiency promoted by supplemental
jurisdiction.” Id.; see Tinius v. Carroll Cnty. Sheriff Dept., 255 F. Supp. 2d 971,
976-87 (N.D. Iowa 2003) (holding supplemental jurisdiction extended to a
plaintiff’s state-law claims because they arose out of the same unlawful
detention alleged in his federal-question claim).
Wubben cites to Murphy v. Vill. Of Hoffman Estates, a factually similar
case from an Illinois district court, arguing this pattern of retaliatory action is a
sufficient link to the original complaint. 959 F. Supp. 901 (N.D. Ill. 1997).
Although Murphy is not binding on this court, the circumstances of retaliation
and post-termination conduct are similar to the present case. Id. at 903. In
Murphy, the plaintiff was terminated from his position and sought leave from
the court for his third proposed amendment, adding a new claim, new
defendant, and new exhibit. Id. The additional defendant was a therapist
employed by the plaintiff’s former employer, and the proposed claim alleged a
violation of Illinois confidentiality laws against the therapist for disclosing
confidential information about the plaintiff to his former coworkers. Id. The
court found this additional claim was related to the retaliatory actions of the
plaintiff’s former employer and should be included to facilitate an accurate
decision in the case, particularly because the plaintiff sought reinstatement as
a remedy. Id. at 908.
As discussed above, Wubben’s initial complaint includes a cause of
action for retaliation and she seeks reinstatement to a position with Yankton
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County. Docket 1 ¶¶ 59-73. Swensen’s posts directly reference Wubben, her
former employment with Yankton County, and her termination from her
previous position. Docket 12-1 ¶ 38. Swensen’s posts suggest a pattern of
retaliatory action by Yankton County, and its County Commission, including
Commissioners Dan Klimisch and Swensen. Additionally, Swensen’s posts
appear to directly affect the opportunity for Wubben’s reinstatement to a
position with Yankton County due to the allegations of “violent behavior,”
“strange goings,” and the suggestions there was further misconduct by
Wubben. Id. This pattern of retaliatory action in relation to the proposed
reinstatement provide a sufficient factual connection between the claims and
conduct alleged by Wubben’s initial complaint and the additional claim in her
proposed amendment. See Gibbs, 383 U.S. at 725; Murphy, 959 F. Supp. at
907-08.
Yankton County and Dan Klimisch also argue the proposed amendment
should be denied because the additional claim does not involve the initial
defendants to the lawsuit. Docket 16 at 4. The court disagrees. Although
Swensen was acting in an individual capacity when creating and publishing the
Facebook posts, the content of the posts affiliates the subject matter and
information with Swensen’s position as a Yankton County Commissioner.
Docket 12-1 ¶ 38. In the Facebook posts, Swensen identifies himself as “Gary
Swensen Yankton County Commissioner,” encourages his audience to attend
the Yankton County Commission meeting, and references a video showing how
he and other commissioners fired Wubben. Id. These direct connections exceed
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the “loose factual connection” required for the court to extend supplemental
jurisdiction and distinguish the present case from the rulings of district courts
outside the Eighth Circuit relied upon by Yankton County and Dan Klimisch.
See Docket 16 at 4-5; see also Travelers Ins. Co. v. Intraco, Inc., 163 F.R.D.
554, 557 (S.D. Iowa 1995). Thus, the proposed claim for defamation against
Swensen is related to the claims alleged in the initial complaint and
supplemental jurisdiction extends to the amendment.
B. 	Confusion at Trial
Yankton County and Dan Klimisch also contend that allowing the
proposed amendment would be prejudicial because it would cause confusion at
trial. Docket 16 at 4-5. Defendants argue that they would be required to
differentiate their own acts from those of Swensen and the amendment could
cause the jury to conflate Swensen’s conduct with the other causes of action
against Yankton County and Dan Klimisch. Id. at 4. Here, there does not
appear to be overwhelming evidence to suggest the additional state-law claim
for defamation would confuse or mislead the jury. The initial complaint raises a
cause of action that arises under South Dakota state law and would require
jury instructions to that effect. Docket 1 ¶¶ 60-65. Even without the proposed
amendment, this case will require jury instructions regarding state and federal
laws at trial. Thus, jury instructions will be sufficient to resolve any confusion
that could occur as to the different federal- and state-law claims.
Wubben brings the defamation claim against Swensen in his individual
capacity. Docket 12-1. Although the defamation claim against Swensen is
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sufficiently related to support supplemental jurisdiction, Swensen’s actions
remain separate from those of Yankton County and Dan Klimisch. Similarly,
Wubben’s claim for defamation is related to her claim for retaliation, but the
defamation claim remains separate from her claim for retaliation against the
other defendants. Because the amendment asserts a defamation claim against
Swensen alone, the risk of the jury confusing Swensen’s actions with the other
defendants’ is minimal. Yankton County and Dan Klimisch have failed to meet
their “burden of proof of prejudice” as to confusion at trial. Roberson, 241 F.3d
at 995. Thus, the court finds Wubben’s amendments would not cause
confusion at trial.
C. 	Hardships to Each Party
Finally, the court considers “the hardship to the moving party if leave to
amend is denied . . . and the injustice resulting to the party opposing the
motion should it be granted.” Miller et al., supra, § 1487 (footnotes omitted).
Here, Wubben has a substantial interest in having all related causes of action
tried in one case. See Foman, 371 U.S. at 181-82. If the court does not allow
Wubben’s proposed amendment, she would be required to file an action in the
state court system for her defamation claim. Because the amended claim is
related to those in the initial complaint, pursuing the defamation claim in the
state court system would require a duplication of discovery efforts by Wubben’s
counsel. It appears much of the same evidence required in the present case
(including depositions, witnesses, interrogatories, etc.) would be necessary for
the litigation of the defamation claim. Thus, Wubben’s interest in having all
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related claims of action tried in the same case to facilitate a proper decision on
the merits outweighs the minimal risk of confusion at trial.
Similarly, there is not a risk of substantial additional expense or
increased burden for trial preparation for Yankton County and Dan Klimisch.
The published Facebook posts are available for public access, and Swensen
has not previously been deposed. Thus, the related posts and relevant witness
are available to Yankton County and Dan Klimisch and do not require any
duplicative discovery effort. Due to the nature of the posts, and Swensen’s
position as County Commissioner, it seems likely Yankton County and Dan
Klimisch would conduct the same trial preparation whether or not the
defamation claim is added to the action.
Also, the proposed defamation claim is alleged against Swensen, not
Yankton County or Dan Klimisch. For this reason, it appears the risk of unfair
surprise to the existing defendants and the trial preparation burden imposed
upon them are relatively minor. There are no additional expert witnesses
required by the claim, and the issues raised in the defamation claim do not
exceed or overshadow those set forth in the initial complaint. Because the
amendment comes at an early stage in the discovery process, it appears there
will be adequate time for Yankton County and Dan Klimisch to conduct the
required discovery, and there is no risk of duplicated resources and efforts. See
Roberson, 241 F.3d at 995. Thus, Wubben’s proposed amendment is not
prejudicial to defendants, Yankton County and Dan Klimisch.
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CONCLUSION
Wubben’s proposed amendment is timely made and raised in good faith
and without dilatory motive. Wubben’s defamation claim is not futile and would
survive a motion to dismiss. The proposed amendment is sufficiently related to
the initial complaint to extend supplemental jurisdiction. Finally, the addition
of a new claim and new defendant is not prejudicial to the initial defendants,
Yankton County and Dan Klimisch. Thus, it is
ORDERED that Wubben’s motion to amend the complaint (Docket 12) is
granted.
Dated July 15, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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