IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CONTINENTAL CASUALTY )

COMPANY, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO 04-0766-KD-C

)

COMPASS BANK, )

)

Defendant. )

ORDER

This matter is before the court on plaintiff’s motion for leave to file amended complaint

and memorandum in support (Doc. 65), defendant’s objection to the motion (Doc. 78), plaintiff’s

motion for leave to file revised first amended complaint and memorandum in support (Doc. 92),

and defendant’s supplemental objection to motion for leave to file amended complaint. (Doc.

100). Plaintiff seeks to amend its complaint to “include additional factual allegations relating to

the tolling of the statute of limitations based on fraudulent concealment” (Doc. 65) and to amend

its complaint to reflect newly discovered evidence. (Doc. 92). 

Plaintiff asserts that the amendments will not result in undue prejudice because the first

motion was filed before the deadline set in this court’s Rule 16(b) Scheduling order, discovery is

still ongoing, and the amendments do not expand the scope of the case, introduce new causes of

action, or require additional fact discovery but rather reflect newly discovered information

obtained from defendant through the course of discovery. Plaintiff asserts that specific factual

allegations supporting its negligence claim and fraudulent concealment allegations based upon

the newly discovered information are added to the revised first amended complaint and that

plaintiff has satisfied its pleading requirements. 

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Defendant objects that in the first amended complaint, plaintiff seeks to amend its

complaint to attempt to support its contention that the three year statute of limitations should be

tolled because of the alleged fraudulent concealment but that plaintiff has not supported this

contention sufficiently under Alabama law or federal law and thus many parts of the first

amended complaint should be stricken as superfluous, immaterial, impertinent or unnecessary. 

Defendant supplements its objection by stating that one allegation is false (identity of the teller

supervisor who opened the account), and that other allegations regarding policies and procedures

are mis-characterizations of evidence and testimony or are misleading. 

The Rule 16(b) Scheduling Order set the deadline for amendment of pleadings as June

15, 2005 (Doc. 18). Plaintiff filed its first motion on June 15, 2005 and thus filed within the time

frame. Plaintiff filed its second motion on July 22, 2005 and discovery did not conclude until

September 15, 2005. (Doc. 18). Plaintiff and defendant both submit that the proposed amended

complaint adds no new parties and no new theories or causes of actions. Also, defendant does

not assert that it is surprised or prejudiced by the proposed amendments. Rather, defendant 

argues points that are more suitably addressed in an answer or an appropriate motion. 

Accordingly, upon consideration of the foregoing, and because Rule 15(a) of the Federal

Rules of Civil Procedure provides that “leave shall be freely given when justice so requires”, the

motion to amend (Doc. 65) and the motion for leave to file revised first amended complaint 

(Doc. 92) are GRANTED. 

DONE this the 11th day of January, 2006. 

 s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE 

Case 1:04-cv-00766-KD-C Document 219 Filed 01/11/06 Page 2 of 2