The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________ No. 98-1181

________________ Lachonne Bell, *

Appellant, *

v. * District Court for the Allstate Life Insurance Company; * Sears Roebuck & Company, *

Appellees. *

* Appeal from the United States

* Eastern District of Arkansas.

*

________________ Submitted: June 12, 1998 Filed: November 12, 1998

________________ Befor e HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, an d PANNER, District Judge.

1

________________ HANSEN, Circuit Judge.The Ho norable Susan Webber Wright, United States District Judge for th e 2 Eastern District of Arkansas. 2 Lachonn e Bell appeals the grant of summary judgment by the United State s Distric t Court for the Eastern District of Arkansas in this diversity case in which she 2 sought payment under two accidental death insurance policies upon the death of her exhusband
. Bell also appeals the district court's denial of her motion to amend he r complaint. We affirm. I. Lachonn e Bell purchased two insurance policies from Allstate Life Insuranc e Company (Allstate) under master group policies. Sears Roebuck & Company (Sears) was the policyholder in each case. One policy was an Accidental Death an d Dismemberment

policy, effective January 11, 1994, and the other was an Accidental Dea thpolicy, effective March 17, 1994. Both policies listed Lachonne Bell as th e primary insured and defined "i nsured person" to include "you" (defined as the primary insured) and "if covered, your spouse." Lachonne Bel l married Earl Bell on July 31, 1983. They were divorced o n December 8, 1994, and Earl Bell died on June 30, 1995. Lachonne Bell filed a claim under both policies but was denied coverage because she was not married to Earl at the ti me of his death and thus, he was not her spouse and not covered under the policies. On March 20 , 1997, Bell filed this diversity action to recover on the policies
. Defendants moved f

or summary judgment on October 24, 1997, the last day for filing moti ons under the court's scheduling order. Bell filed a motion to amend her original complaint on October 30, 1997, four working days after the court's motion cutof f deadline, seeking to add allegations that Allstate had illegally marketed the policies and that the policies violated Arkansas law by not including a conversion privilege. The3

district court denied the motion to amend and granted summaryjudgment in favor of the defendants on November 26, 1997. II. A. Leave to Amend Complaint Bell argues tha

t the district court abused its discretion by denying her motion to amend her complaint. A decision whether to allow a party to amend her complaint is left to the sound

discretion of the district court and should be overruled only if there is an abuse of discretion. See Humphreys v. Roche Biomedical Lab., Inc. , 990 F.2d 1078, 1081 (8th Cir. 1993); Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 644 F.2d 690, 694 (8th Cir. 1981). After an answer has been filed in response to the plaintiff's complaint, the plaintiff " may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Prope r justifica tionfor denying such a motion includes: "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowa nce of the amendment, [and] futility of amendment." Foman v. Davis , 37 1 U.S. 178 , 182 (1962). Delay alone is insufficient justification; prejudice to th e nonmovant must also be shown. See Buder , 644 F.2d at 694 (finding th at delay coupled with a mere recitation of prejudice by the district court was insufficient to pas s scrutiny ); Mercantile Trust Co. Nat'l Ass'n v. Inland Marine Prods. Corp. , 542 F.2 d 1010, 1012 (8th Cir. 1976) (holding that delay alone is not enough to deny a motion to amend). Any prejudice to the no nmovant must be weighed against the prejudice to the moving party by not allowing the amendment. Buder , 644 F.2d at 694. Bell filed her motion four working days after the moti on cutoff date, certainly not late enough

alone to be prejudicial. However, it was also after the discovery deadline and five we eks before trial. While the original complaint sought payment on th e policies, the amen dment alleged illegal activity in the marketing of the policies as well4

as violations of A

rkansas law regarding the content of the policies. Cases in which an abuse of discretion has been found generally involve amendments based on facts similar to the original complaint. See Sanders v. Clemco Indus. , 823 F.2d 214, 21 6-17 (8th Cir. 1987) (finding abuse of discretion where a party was not allowed to amend hi s com plaint to properly plead diversity as the basis for jurisdiction); Buder , 644 F.2d at 694-95 & n.5 (findingabuse where a plaintiff was not allowed to amend his complaint to plead frau d based on facts substantially similar to his previously pled securities law claim). On the other hand, when late tendered amendments involve new theories o f recovery and impose additional discovery req uirements, courts are less likely to find an abuse of discretion due to the prejudi ce involved. See Dover Elevator Co. v. Arkansas State Univ. , 64 F.3d 442, 448 (8th Cir. 1995) (finding no a buse of discretion where trial was less than a month away, the discovery deadline was within a week of the motion to amend, and the amendment, adding a new theory of recovery, would leave th e opposing party inadequate t ime to prepare); Vitale v. Aetna Cas. & Sur. Co. , 814 F.2d 1242, 1252 (8th Cir. 1987) (finding no abuse where the motion was made less than two months before trial, no reason was given for the delay, and the amendment may have required additional discovery on the new factual allegations). The amendments sought in this case would require additional discovery by the parties. They would require a review of the marketing of the policies as well as an evaluation of specific provisions of the policies for compliance with Arkansas insurance law. The district court foun d that if it allowed the amendment, it would require an extension of the already expired deadlin e for motions. The issues raised by the proposed amendment involve different factual and legal issues than the allegations in the original complaint. The dist rict court denied Bell's motion because of undue delay, prejudice to the defendants in having to reopen discovery on new sub stantive claims so close to the trial date, and because t

he only reason for the untimeliness of the motion was Bell's lack of due dilige nce. Bell argues that her new claims have merit and she will be greatl y prejudiced if the amendment is denied because the new claims are her only hope for5

vi ctory on the merits. While this may or may not be true, the district court provide d adequate justification for its ruling. Bell also argues the district court should have reopened discovery in lieu o f denying the motion. It is within the district court's discretion to extend discovery, grant a contin uance, or require the moving party to compensate the opposing party for an y losses caused by allowing the amendment. See Buder , 644 F.2d at 694. But it is just that--the district court's dis cretion. We are unable to say on these facts that the district court abused its discretion in denying Bell's motion to amend her complaint. B. Summary Judgment Bell appeals the district court's grant of summary judgment on her claims a s originally filed, arguing that th e alleged illegal activities of the defendants in relation to the insurance policies raise a genuine issue of material fact regarding her recovery under the policies. We review a grant of summary judgment de novo, see Dupps v. Travelers Ins. Co. , 80 F.3d 312, 313 (8th Cir. 1996), viewing the record in the light mos t favorable toBell, the nonmoving party. Summary judgment is appropriate if there are no genuine issues of material fact in the record and the moving party is entitled t o judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). State law c ontrols the construction of insurance policies when a federal court is exercising diversity jurisdiction. Langley v. Allstate Ins. Co. , 995 F.2d 841, 844 (8th Cir. 1993) (citations omitted). We review th e district court's interpretation of Arkansas law de novo. Dupps , 80 F.3d a t 313. Arkansas courts follow a long-standing rule that the la nguage of an insurance policy controls if the terms are clear and unambiguous
. Courts refuse to rewrite the policy to make an insurer liable for a risk that is plainl y excluded. See Vincent v. Prudential Ins. Brokerage , 970 S. W.2d 215, 216 (Ark. 1998); Smith v. Shelter Mut. Ins. Co. , 937 S.W.2d 180, 181-82 (Ark. 1997). Words are to be6

construed i n their "plain, ordinary, popular sense." Langley , 995 F.2d at 844-4 5 (internal quotations omitted).
Bot h policies in question name Lachonne Bell as the "primary insured." Th e Certificate of Insurance defines "primary insured" to be "you, the individual named on the certificate," an d defines "insured person" to be "you, and if covered, your spouse." The re is nothing ambiguous about this language, taken in its ordinary sense. Se e W EBSTER ' S T HIRD N EW I NTERNATIONAL D ICTIONARY 2208 (1986) (defining "spouse" as a "man or woman joined in wedlock: married person: husband, wife"). Lachonne and Earl Bel l were divorced December 8, 1994. Earl Bell died June 30, 1995. Earl Bel l was not an "insured person" under either policy since he was neither the individua l named on the certificate nor the spouse of that person at the time of his death. Because there is no genuine issue

of material fact regarding the coverage of Earl Bell, summary judgment was appropriate. Bell argues that summary judgment was inappropriate because, as she al leges, the ins urance policies were illegally marketed and violated various Arkansas statutes
. Because the district court denied her request to amend the complaint, which we affirm, these claims are not part of the record, seeFed. R. Civ. P . 56(c), and are not considered when determining the summary judgment motion. III. For the reasons stated above, we affirm the judgment of the district court. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT