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
MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs’ Motion for Leave to File Amended
Complaint and Jury Demand. (Filing No. 106). Defendant opposes Plaintiffs’ motion
asserting that it is untimely and the amendments requested are futile. For the reasons that
follow, the court finds Plaintiffs have shown good cause to amend the complaint after the
expiration of the deadline for filing motions to amend and should be allowed to amend the
complaint to adjust the calculation of claimed damages. The motion will be granted.
I. BACKGROUND
This case was originally filed in the District Court for Douglas County and removed
to this court on September 30, 2021. (Filing No. 1). A progression order was entered on
March 30, 2022, after a ruling on Defendant’s motion to dismiss. (Filing No. 28; Filing No.
35). Relevant to the pending motion, the deadline for moving to amend the pleadings or
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add parties was set for June 25, 2022. (Filing No. 35). The deadline for filing motions to
amend was not extended in any of the subsequent amendments to the final progression
order on August 31, 2022 (Filing No. 41), March 17, 2023 (Filing No. 47), or August 22,
2023 (Filing No. 59).
Plaintiffs filed a complaint on June 28, 2023, in the United States District Court for
the Southern District of Florida against RTS of Broward Corp. and Mastec, Inc.
(collectively “Florida defendants”), alleging claims arising out of the same operative facts
at issue in this case. (Filing No. 108 at 1). A motion to stay of litigation was filed in this
court on September 15, 2023, and the motion was granted on January 11, 2024. (Filing No.
71). The case remained stayed pending the resolution of the related litigation in Florida and
the parties filed status reports as directed by the court.
A telephonic status conference was held on September 24, 2025. The parties
indicated the Florida litigation had settled and this case was ready for progression. (Filing
No. 93, Minute Entry). The parties conferred and submitted a joint proposed final
progression order. Thereafter, the Fourth Amended Final Progression Order was entered.
(Filing No. 94).
Plaintiffs filed the pending motion for leave to file an amended complaint on
December 18, 2025. (Filing No. 106). The motion seeks leave to amend the complaint to
adjust the total damages claimed to account for funds recouped through the settlement of
the Florida litigation and to add additional damages arising from the Florida litigation
including interest accrued and attorneys’ fees incurred in prosecuting it. (Filing No. 106 at
2). A copy of the proposed amended complaint was attached to the motion. (Filing No.
106-1). Defendant opposes the motion.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 provides that the Court should “freely give
leave” to amend a pleading “when justice so requires.” When a party seeks leave to amend
under Rule 15(a) outside of the time period established by a scheduling order, the party
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must first demonstrate good cause under Rule 16(b). See Popoalii v. Corr. Med. Servs.,
512 F.3d 488, 497 (8th Cir. 2008); Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716
(8th Cir. 2008). Rule 16(b) provides that a judge must issue a scheduling order limiting
“the time to join other parties, amend the pleadings, complete discovery, and file motions.”
Fed. R. Civ. P. 16(b)(3)(A). The schedule “may be modified only for good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The movant’s diligence in attempting to
meet the case management order’s requirements is the ‘primary measure’ of good cause.”
Midwest Med. Sols., LLC v. Exactech U.S., Inc., 95 F.4th 604, 607 (8th Cir. 2024), reh’g
denied, No. 22-2250, 2024 WL 1561617 (8th Cir. Apr. 11, 2024). “[I]f the reason for
seeking the amendment is apparent before the deadline and no offsetting factors appear,
the Rule 16 deadline must govern.” Financial Holding Corp. v. Garnac Grain Co., 127
F.R.D. 165, 166 (W.D. Mo. 1989). “Where there has been ‘no change in the law, no newly
discovered facts, or any other changed circumstance . . . after the scheduling deadline for
amending pleadings,’ then [the court] may conclude that the moving party has failed to
show good cause.” Midwest Med. Sols., 95 F.4th at 607 (quoting Hartis v. Chi. Title Ins.
Co., 694 F.3d 935, 948 (8th Cir. 2012)).
Although prejudice to the nonmovant resulting from modification of the scheduling
order may be a relevant factor, the court will generally not consider prejudice if the movant
has not been diligent in meeting the scheduling order’s deadlines. See Sherman, 532 F.3d
at 717 (citing Bradford v. DANA Corp., 249 F.3d 807, at 809 (8th Cir. 2001)). Leave to
amend pleadings should also be denied where the party unduly delayed in seeking the
amendment. “Undue delay” is generally understood to occur “when a party waits until the
eleventh hour of its case to file its motion to amend.” Nitride Semiconductors Co. v. Digi-
Key Corp., No. 17-CV-4359 (JRT/LIB), 2020 WL 13016670, at *3 (D. Minn. Aug. 10,
2020) (internal quotation marks omitted). Whether to grant a motion for leave to amend is
within the sound discretion of the district court. Popoalii, 512 F.3d at 497.
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III. ANALYSIS
Plaintiffs rely upon Fed. R. Civ. P. 15(a)(2) in support of their motion for leave to
file an amended complaint, arguing that the Florida litigation was only recently resolved
and this case reopened. (Filing No. 106-1 at 5). Plaintiffs’ amendment is sought to “clean
up” the pleadings and make the demand for damages clear. (Filing No. 115 at 10).
Defendant asserts that Fed. R. Civ. P. 16(b)(4) governs, and because the deadline to amend
the pleadings expired prior to the stay of case progression, Plaintiffs must demonstrate
good cause. Defendant argues that Plaintiffs offered no showing of good cause, as Plaintiffs
had “full knowledge of the facts underlying the proposed amendment when they filed their
original complaint and made a deliberate choice not to assert these damages.” (Filing No.
114 at 1).
The deadline for moving the amend pleadings in this case was June 25, 2022. (Filing
No. 35). This deadline expired prior to the initiation of the Florida litigation on June 28,
2023. The progression deadlines were amended one more time, on August 22, 2023, before
the motion to stay was filed on September 15, 2023. (Filing No. 59; Filing No. 61). When
the stay was lifted, neither party requested to reopen the deadline for filing motions to
amend, nor did they include a new deadline for motions to amend in the joint proposed
deadlines submitted to the court. Accordingly, the court must find that the deadline for
filing motions to amend has expired and therefore will apply the good cause standard under
Rule 16.
As a preliminary matter, Plaintiffs propose to adjust the amount of total damages
claimed in the original complaint from $756,932.75 to “At least $226,932.75, the portion
of the $756,932.75 paid by Plaintiffs on March 24, 2020, that Plaintiffs have not recouped.”
(Filing No. 106-1 at 5). Plaintiffs also add a prayer for post-judgment interest, costs, and
fees in bringing this action “to the extent warranted or authorized by law.” (Filing No. 106-
1). Defendant’s response to the motion to amend does not include an objection to either of
these amendments. The court finds there is good cause to amend these paragraphs,
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particularly where Plaintiffs clarify the amount they seek after recouping a portion of the
damages through the Florida litigation.
The parties’ briefing focuses on Plaintiffs’ proposed new prayer for attorney fees
and prejudgment interest. As to the attorney fees, Plaintiffs’ proposed amended complaint
adds a prayer for damages in the amount of $154,930.76, for having to litigate against the
tortfeasors in the Florida litigation. (Filing No. 106-1). Plaintiffs assert they were
“effectively forced by the Stay to incur significant attorney fees in prosecuting the Florida
case.” (Filing No. 108 at 4). Plaintiffs argue these fees were not known and could not be
identified at the time the initial complaint was filed and that Defendant’s negligence forced
Plaintiffs to bring an action against third persons via the stay. (Filing No. 108 at 2, 4).
Plaintiffs request the motion to amend be granted and they be allowed to test their claims
on the merits. See Foman v. Davis, 371 U.S. 178 (1962).
Defendant makes no separate good cause argument as to Plaintiffs’ request for
attorney fees but argues that this amendment is futile, asserting the claimed attorney fees
are not available under Nebraska Law. The court may deny leave to amend on various
grounds, including undue delay, bad faith on the part of the moving party, and futility of
the amendment. Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008). When a court denies
leave to amend on the ground of futility, it means the court reached a legal conclusion that
the amended complaint could not withstand a Rule 12 motion. In re Senior Cottages of
Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007).
As a general proposition, Nebraska follows the “American Rule” that attorney fees
may be recovered only when authorized by statute or when a recognized and accepted
uniform course of procedure allows recovery of an attorney fee. Sid Dillon Chevrolet—
Oldsmobile—Pontiac, Inc. v. Sullivan, 559 N.W.2d 740, 748 (Neb.1997); Eikmeier v. City
of Omaha, 783 N.W.2d 795, 797–98 (Neb.2010) (“A party may recover attorney fees and
expenses in a civil action only when a statute permits recovery or when the Nebraska
Supreme Court has recognized and accepted a uniform course of procedure for allowing
attorney fees.”). There is an exception to the American Rule, sometimes called the
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wrongful act doctrine or the third-party litigation exception when a court may award
attorney fees as damages if the defendant’s tortious act projects the plaintiff into litigation
with a third party. In requesting attorney fees, Plaintiffs refer to Tetherow v. Wolfe, 223
Neb. 631, 638 (1986), which states “[o]ne who through the tort of another has been required
to act in the protection of his interests by bringing or defending an action against a third
person is entitled to recover reasonable compensation for loss of time, attorney fees and
other expenditures thereby suffered or incurred in the earlier action.”
Defendant argues the wrongful act doctrine applies to lawsuits with third parties,
not other tortfeasors, and because the Florida defendants are tortfeasors, the wrongful act
doctrine is inapplicable and Plaintiffs would not be able to recover under this theory of
damages. (Filing No. 114 at 2). Defendant cites OnePoint Solutions v. Borchert, 486 F.3d
342 (8th Cir. 2007), arguing that the Eighth Circuit cautioned against awarding attorney’s
fees under the third-party litigation exception whenever a plaintiff sued two or more
tortfeasors. The undersigned has reviewed OnePoint and disagrees with Defendant’s
interpretation of it.
In OnePoint, the Eighth Circuit noted that the complaint treated two individuals,
Borchert and Catuzzi, as joint tortfeasors acting together during a single event that gave
rise to the litigation. “For Borchert and Catuzzi to be liable for OnePoint's attorney's fees
under the third-party litigation exception, they must have: (1) committed a tortious act, (2)
which propelled OnePoint into litigation, (3) with a third party.” OnePoint, 486 F.3d at
352. The court found that as joint tortfeasors, neither Borchert nor Catuzzi was a third
party. The court also rejected OnePoint’s argument that Borchert’s or Catuzzi’s actions
forced it to recover payment from another individual, Reilly. The court noted that Reilly
voluntarily returned payment and OnePoint never sued him. Id. For these reasons, the court
concluded the third-party litigation exception did not apply.
Here, there is no allegation that Defendant acted jointly with any of the defendants
in the Florida litigation. Plaintiffs’ complaint alleges Defendant negligently advised or
failed to procure insurance coverage for Plaintiffs prior to a claimed loss, while Plaintiffs
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brought the action against the Florida defendants for the performance of negligent
construction work, which caused the claimed loss. Defendant correctly notes that the
Florida defendants are alleged tortfeasors. However, there is no allegation that Defendant
in this action acted together with the Florida defendants in a single event, therefore they
are not joint tortfeasors. Plaintiffs’ argument under the third-party litigation exception is
that if they had been properly informed and covered by Defendant, then Plaintiffs’
insurance policy would have provided for the damages incurred and there would have been
no need to litigate the claims in Florida. Upon my review, the Florida defendants are or
could be considered third parties, as contemplated by OnePoint, therefore the court finds
that Plaintiffs’ demand for attorney fees under the third-party litigation exception is not
futile, and Plaintiffs should be allowed to amend the complaint accordingly.
Plaintiffs also request to add two calculations for prejudgment interested accrued,
taking into account the amount paid by Plaintiffs, adjusted to account for amounts recouped
through the Florida litigation. Plaintiffs argue that they can demonstrate good cause to
amend because the remedies sought were not known or contemplated at the time the
original Complaint was filed, and that Plaintiffs purportedly informed Defendant of its
intention to seek attorney fees and interest “as early as September 26, 2025.” (Filing No.
108 at 4-5). In response, Defendant argues that “Plaintiffs were aware of the alleged
entitlement to prejudgment interest since the inception of this case in 2022.” (Filing No.
114 at 5).
A review of the docket reveals that the damages Plaintiffs now seek to include in
the amended complaint are not newly discovered, but they may not have been contemplated
at the time the case was filed. In fact, it appears Defendant was the first party to mention
prejudgment interest as a possible avenue for Plaintiffs when arguing for the stay of this
case in 2023. (See, generally, Filing No. 61; See Filing No. 68). Plaintiffs argued against
the stay asserting that their damages were compounding on an ongoing basis with Plaintiffs
losing the time value of the amount paid, and incurring ongoing damages by having to
litigate its claims in this court as well as in Florida. In its reply Defendant argued that the
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case should be stayed, and that “to alleviate the time value of the amount allegedly paid,
Plaintiffs need only seek pre-judgment interest, which they did in the S.D. Fla. Litigation.”
(Filing No. 68 at 7). Defendant continued, stating “Given that prejudgment interest is
specifically available to provide a recourse to a party who has lost the ability to use the
funds it claims are owed, Plaintiffs’ argument that a stay of litigation would work
substantial damage is entirely baseless.” (Filing No 68 at 7). Judge Bazis1 incorporated that
argument in the order granting the stay. (Filing No. 71 at 5).
The court finds it would be unfair to bar Plaintiffs from amending the complaint to
claim a measure of damages that Defendant has specifically stated is available to Plaintiffs.
After Defendant and the court acknowledged the possibility of prejudgment interest,
Plaintiffs were not able to immediately seek an amendment of the complaint because the
case was stayed. The stay was lifted on September 24, 2025, and although Plaintiffs did
not immediately request to amend the complaint, Plaintiffs assert they promptly sent an
updated settlement demand, including attorney fees and interest, to Defendant on
September 26, 2025. (Filing No. 107-1 at 2). Defendant has not refuted that assertion.
While Plaintiffs could or should have requested to amend the complaint or reopen the
deadline to file a motion for leave to amend sooner, the delay of Plaintiffs’ request is not
unreasonable and is certainly not an “eleventh hour” amendment that would constitute
undue delay. Additionally, Plaintiffs are not seeking to add claims, they are seeking to
update the measure of damages now that certain amounts have been recouped and the
Florida case is settled. Accordingly, the court finds good cause for the amendment.
Defendant argues that in addition to Plaintiffs’ amendment being untimely, the
proposed amendment is futile under Nebraska law. (Filing No. 114 at 1). To the extent that
Defendant argues Plaintiffs’ should be barred from amending to add prejudgment interest
to its calculation of damages, the undersigned disagrees. The Nebraska Supreme Court has
found that noncompliance with a pleading rule, specifically the omission of a demand for
1 U.S. District Judge Susan M. Bazis is now the presiding judge in this case, but was previously assigned as the
referral Magistrate Judge.
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prejudgment interest, does not preclude an award of such interest if the entitlement is
provided for by statute and the opposing party is on notice that the damages are at issue
and has an opportunity to be heard prior to judgment. AVG Partners I, LLC v. Genesis
Health Clubs of Midwest, LLC, 307 Neb. 47, 62–64, 948 N.W.2d 212, 229–30 (2020). The
court recognizes that Defendant now argues against the amendment on futility grounds,
asserting the Nebraska Statutes (Neb. Rev. Stat. §§ 45-104 and 45-103.02) do not allow
prejudgment interest under these circumstances. However, given the parties’ discussion of
prejudgment interest prior to the stay and Defendant’s previous posture as to the
availability of these damages, Plaintiffs should be afforded the opportunity to amend the
complaint and the court may take up the availability of prejudgment interest on an
appropriate motion to dismiss, rather than in opposition to the filing of an amended
complaint.
The court finds that Defendant will not be prejudiced by the allowance of the
amendment to add the calculation of damages for attorney fees and prejudgment interest.
Defendant cannot plausibly argue that it was prejudiced by Plaintiffs’ seeking the very
damages that Defendant identified in support of the stay. Despite the age of this case, the
parties are still early in the discovery process and the parties have already served discovery
that touches on the prejudgment interest issues. Should Defendant require additional
discovery regarding amended damages, Plaintiffs have already stated that they will not
oppose additional discovery requests on these issues or an extension of deadlines to
accommodate them. (Filing No. 115 at 10).
Accordingly,
IT IS ORDERED:
1. Plaintiffs’ Motion for Leave to Amend is granted. (Filing No. 106).
2. Plaintiffs’ proposed amended complaint shall be filed separately of record on or
before February 17, 2026. Defendant shall answer or otherwise respond to the
second amended complaint within 21 days of it being filed.
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3. This case shall progress in accordance with the Fourth Amended Final
Progression Order. (Filing No. 94). Should Defendant need additional time to
serve discovery related to the amended damages calculation, the parties shall
confer and jointly propose amended progression deadlines.
4. A status conference to discuss case progression, the parties’ interest in
settlement, and the trial and pretrial conference settings will be held with the
undersigned magistrate judge on June 9, 2026 at 11:00 a.m. by telephone.
Counsel shall use the conferencing instructions assigned to this case to
participate in the conference. (Filing No. 89).
Dated this 9th day of February, 2026.
BY THE COURT:
s/ Ryan C. Carson
United States Magistrate Judge
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