Halo Synergy Group, et al v. Marsh and McLennan Agency, LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HALO SYNERGY GROUP, INC., a
Nebraska limited liability company; and
IDASAAS, LLC, a Nebraska limited liability
company;
Plaintiffs,
vs.
MARSH & MCLENNAN AGENCY, LLC, a
Delaware limited liability company;
Defendant.
8:21CV386
ORDER
This matter comes before the court because Defendant has sought leave to file a
surreply as to the pending motion to amend. (Filing No. 119). Defendant argues Plaintiffs
improperly introduced new legal theories in the reply brief that were not raised in their
original motion. Defendants also seek to clarify “the specific factual and legal inaccuracies
contained in Plaintiffs’ reply.” (Filing No. 119 at 2). Having reviewed the motion and basis,
the motion will be denied as untimely and because the primary argument for surreply is not
supported by the record.
Plaintiffs’ reply was filed on January 15, 2026 (Filing No. 115), and Defendant’s
motion for surreply was filed on January 28, 2026 (Filing No. 119). There is no specific
time period identified in the Local Rules for filing motions for surreply. However, the
motion to amend has been ripe for almost two weeks before Defendant filed the motion
and Defendant has not provided any reason for the delay. The court has an interest in the
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“just, speedy, and inexpensive determination” of this action, and Defendant simply waited
too long to request surreply. See Fed. R. Civ. P. 1.
As to the substantive argument, Defendants alleges that Plaintiffs “invoke for the
first time the ‘wrongful act doctrine’ to claim entitlement to attorney’s fees on the theory
that insurance coverage would have existed but for the alleged negligence of an insurance
agent.” This statement is not supported by the record. Plaintiffs’ intent to pursue attorney
fees and expenses incurred in having to litigate the action in Florida are clearly stated in
Plaintiffs’ motion (Filing No. 106 at 2, ¶ 8), proposed amended complaint (Filing No. 106-
1 at 5, ¶ (a)(iv)), and attorney affidavit filed in support of the motion (Filing No. 107-1 at
2, ¶ 11). Plaintiffs’ opening brief also states:
‘One who through the tort of another has been required to act in the protection
of his interests by bringing or defendant an action against a third person is
entitled to recover reasonable compensation for loss of time, attorney fees
and other expenditures thereby suffered or incorrect in the earlier action.’
Tetherow v. Wolfe, 223 Neb. 631, 638 (1986). In this case Defendant’s
negligence forced Plaintiffs to bring an action against certain third persons
via the Stay. The damage claims Plaintiffs seek to make out in the Amended
Complaint are identified in Tetherow as proper subjects for relief.
(Filing No. 108 at 4).
Defendant’s response brief states “If Plaintiffs claim for Attorney’s Fees is
based on having to litigate the Florida matter, such are not recoverable since the
defendants in the Florida matter were tortfeasors and not third parties.” (Filing No.
114 at 10). Defendant then argued that the amendment is futile, in particular citing
One Point Solutions v. Borchert, 486 F.3d 342 (8th Cir. 2007) to explain its position
that attorney fees are not appropriate in this case under the wrongful act doctrine.
Plaintiffs’ reply addressed Defendants’ argument and the One Point case. Upon
review, Plaintiffs raised the wrongful act doctrine, although not by name, in the
motion and are permitted to respond to Defendant’s arguments in their reply.
Defendant’s motion also alleges Plaintiffs incorrectly identify the correct
legal standard in their reply. (Filing No. 119). The parties have each set forth their
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positions as to the legal standard governing the motion to amend, and the court will
identify the standard to be applied in its order on the motion. There is no further
need for briefing on that subject.
Accordingly,
IT IS ORDERED that Defendant’s motion for leave to file surreply is denied.
(Filing No. 119).
Dated this 28th day of January, 2026.
BY THE COURT:
s/ Ryan C. Carson
United States Magistrate Judge
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