United States District Court, S.D. Mississippi, Eastern Division
ELIZABETH L. STRICKLAND, et al., PLAINTIFFS
AMY ALYECE BROOME, et al. DEFENDANTS
STARRETT UNITED STATES DISTRICT JUDGE
the reasons provided below, the Court grants in part
and denies in part Plaintiffs' Motion for
Clarification and Other Relief . The motion is granted
insofar as Plaintiffs seek a ruling from the Court as to
whether they pleaded claims of conversion and breach of
contract: Plaintiffs did not plead such claims. The motion is
denied in all other respects.
Court provided the factual background of this case in an
earlier opinion. See Strickland v. Broome, No.
2:16-CV-124-KS-MTP, 2017 WL 4707032, at *1 (S.D.Miss. Oct.
19, 2017). Plaintiffs initiated this action on August 15,
2016. They named Amy Alyece Broome as the lone defendant. On
October 25, 2016, the Court entered a Case Management Order
 which provided, among other things, a deadline of
December 15, 2016, for motions to amend the pleadings, and a
discovery deadline of June 1, 2017.
13, 2017 - approximately seven months past the amendments
deadline and over a week past the discovery deadline -
Plaintiffs filed a motion seeking leave to file an Amended
Complaint  and add USAA as a defendant. Plaintiffs
claimed that they were unable to “determine any
information concerning the . . . life insurance coverage,
” despite first receiving documents from USAA via
subpoena in February 2017. In fact, Plaintiffs admitted that
Defendant Broome's discovery responses from December 2016
identified USAA as a potential defendant. Nevertheless, the
Court allowed  Plaintiffs to amend. On June 21, 2017,
Plaintiffs filed an Amended Complaint.
August 17, 2017, USAA filed a Motion to Dismiss 
Plaintiffs' claims of breach of fiduciary duty and
constructive trust. The Court granted the motion on October
19, 2017. Strickland, 2017 WL 4707032 at *1.
November 6, 2017, the Magistrate Judge held a status
conference, and the Plaintiffs represented that they intended
to file a motion seeking the Court's reconsideration of
the Court's order dismissing their claims against USAA.
At this time, Plaintiffs did not mention any claims of breach
of contract or conversion. Two months later, after Plaintiffs
had failed to file a motion as they represented in the status
conference, the Magistrate Judge entered an Amended Case
Management Order . Therein, the Magistrate Judge stated
that the Court had dismissed Plaintiffs' claims against
USAA, and that the only claims remaining were those asserted
against Defendant Broome.
week later, Plaintiffs filed a Motion for Reconsideration
 of the Court's order granting USAA's Motion to
Dismiss . Among other things, Plaintiffs argued that the
Court had “overlooked” claims of conversion and
breach of contract that were pleaded in the Amended Complaint
as to USAA. Alternatively, Plaintiffs sought leave to amend
and assert such claims.
March 14, 2018, the Court denied  Plaintiffs' Motion
for Reconsideration for the same reasons it granted
USAA's Motion to Dismiss. Strickland v. Broome,
No. 2:16-CV-124-KS-MTP, 2018 WL 1320053 (S.D.Miss. Mar. 14,
2018). The Court also noted that it had not
“overlooked” any claims of conversion and breach
of contract. Id. at *2. Rather, it had not addressed
such claims because they were not raised in USAA's Motion
to Dismiss. Id. The Court instructed Plaintiffs to
file a separate motion seeking leave to amend. Id.
So, Plaintiffs filed a Motion for Clarification and Other
Relief , seeking clarification from the Court as to
whether they pleaded claims of conversion and breach of
contract or, alternatively, seeking leave to amend.
Conversion & Breach of Contract Claims
did not plead claims for conversion or breach of contract
against USAA. Plaintiffs never mentioned such claims until
their specifically enumerated claims of breach of fiduciary
duty and constructive trust were dismissed. It is obvious
that Plaintiffs did not intend to assert such claims when
they filed the Amended Complaint. Rather, they are attempting
to do so now to keep USAA in the case for trial. The Amended
Complaint includes a section specifically labeled
“Causes of Action Against USAA Life
Insurance Company, ” and it includes no
mention whatsoever of conversion or breach of contract
claims. It would be wholly unreasonable to expect Defendant -
and the Court - to divine that Plaintiffs intended to assert
claims not specifically enumerated in the section of the
Complaint that purports to specifically enumerate the
causes of action against USAA.
v. City of Shelby, Miss., 135 S.Ct. 346, 190 L.Ed.2d 309
(2014), does not require this Court to guess the nature of a
plaintiff's case. Rather, it holds that a plaintiff need
not specifically cite 42 U.S.C. § 1983 to state a claim
for the violation of constitutional rights. Id. at
347. If, as Plaintiffs argue, they were permitted to simply
list facts without any enumerated legal theories, claims, or
causes of action, then motions pursuant to Rules 12(b)(6) and
12(c) would be toothless because a respondent could simply
assert a new theory of liability ex post facto, as
Plaintiffs attempted to do here. In fact, new theories and
claims could potentially be asserted all the way up to the
pretrial conference. Moreover, there would be serious
implications for removal and remand procedure if all that was
required to state a federal claim were facts without any
mention of federal law or a theory of liability.
summary, the plain language of the Amended Complaint and
Plaintiffs' actions in this litigation clearly indicate
that they did not intend to assert claims of conversion or
breach of contract against USAA until their other claims were
dismissed. Therefore, the Court concludes that no such claims
were pleaded in the Amended Complaint.
16(b) governs amendment of pleadings after a scheduling order
deadline has expired.” S & W Enters., LLC v.
SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.
2003). The rule provides that a scheduling order “may
be modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). “The good cause
standard requires the party seeking relief to show that the
deadlines cannot reasonably be met despite the diligence of
the party needing the extension.” Sw. Bell
Telephone Co. v. City of El Paso, 346 F.3d 541, 546 (5th
Cir. 2003). The Court considers four factors: “(1) the
explanation for the failure to timely move for ...