                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 98-1181
                               ________________

Lachonne Bell,                          *
                                        *
            Appellant,                  *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      Eastern District of Arkansas.
Allstate Life Insurance Company;        *
Sears Roebuck & Company,                *
                                        *
            Appellees.

                               ________________

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

Before HANSEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      PANNER,1 District Judge.
                             ________________

HANSEN, Circuit Judge.




      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
       Lachonne Bell appeals the grant of summary judgment by the United States
District Court for the Eastern District of Arkansas2 in this diversity case in which she
sought payment under two accidental death insurance policies upon the death of her ex-
husband. Bell also appeals the district court's denial of her motion to amend her
complaint. We affirm.

                                            I.

      Lachonne Bell purchased two insurance policies from Allstate Life Insurance
Company (Allstate) under master group policies. Sears Roebuck & Company (Sears)
was the policyholder in each case. One policy was an Accidental Death and
Dismemberment policy, effective January 11, 1994, and the other was an Accidental
Death policy, effective March 17, 1994. Both policies listed Lachonne Bell as the
primary insured and defined "insured person" to include "you" (defined as the primary
insured) and "if covered, your spouse."

      Lachonne Bell married Earl Bell on July 31, 1983. They were divorced on
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
time 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 for summary judgment on October 24, 1997, the last day for filing
motions 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 cutoff
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. The


      2
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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district court denied the motion to amend and granted summary judgment in favor of the
defendants on November 26, 1997.

                                            II.

A.    Leave to Amend Complaint

         Bell argues that 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). Proper
justification for 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 allowance of the amendment, [and] futility of amendment." Foman v. Davis, 371
U.S. 178, 182 (1962). Delay alone is insufficient justification; prejudice to the
nonmovant must also be shown. See Buder, 644 F.2d at 694 (finding that delay coupled
with a mere recitation of prejudice by the district court was insufficient to pass
scrutiny); Mercantile Trust Co. Nat'l Ass'n v. Inland Marine Prods. Corp., 542 F.2d
1010, 1012 (8th Cir. 1976) (holding that delay alone is not enough to deny a motion to
amend). Any prejudice to the nonmovant 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 motion cutoff date, certainly not
late enough alone to be prejudicial. However, it was also after the discovery deadline
and five weeks before trial. While the original complaint sought payment on the
policies, the amendment alleged illegal activity in the marketing of the policies as well

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as violations of Arkansas 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, 216-17 (8th Cir.
1987) (finding abuse of discretion where a party was not allowed to amend his
complaint to properly plead diversity as the basis for jurisdiction); Buder, 644 F.2d at
694-95 & n.5 (finding abuse where a plaintiff was not allowed to amend his complaint
to plead fraud based on facts substantially similar to his previously pled securities law
claim). On the other hand, when late tendered amendments involve new theories of
recovery and impose additional discovery requirements, courts are less likely to find an
abuse of discretion due to the prejudice involved. See Dover Elevator Co. v. Arkansas
State Univ., 64 F.3d 442, 448 (8th Cir. 1995) (finding no abuse 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 the
opposing party inadequate time 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 found
that if it allowed the amendment, it would require an extension of the already expired
deadline for motions. The issues raised by the proposed amendment involve different
factual and legal issues than the allegations in the original complaint.

      The district court denied Bell's motion because of undue delay, prejudice to the
defendants in having to reopen discovery on new substantive claims so close to the trial
date, and because the only reason for the untimeliness of the motion was Bell's lack of
due diligence. Bell argues that her new claims have merit and she will be greatly
prejudiced if the amendment is denied because the new claims are her only hope for


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victory on the merits. While this may or may not be true, the district court provided
adequate justification for its ruling.

        Bell also argues the district court should have reopened discovery in lieu of
denying the motion. It is within the district court's discretion to extend discovery, grant
a continuance, or require the moving party to compensate the opposing party for any
losses caused by allowing the amendment. See Buder, 644 F.2d at 694. But it is just
that--the district court's discretion. 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 as
originally filed, arguing that the 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 most
favorable to Bell, 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 to
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 controls 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 the district court's interpretation of Arkansas
law de novo. Dupps, 80 F.3d at 313. Arkansas courts follow a long-standing rule that
the language 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 plainly
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 be

                                              5
construed in their "plain, ordinary, popular sense." Langley, 995 F.2d at 844-45
(internal quotations omitted).

        Both policies in question name Lachonne Bell as the "primary insured." The
Certificate of Insurance defines "primary insured" to be "you, the individual named on
the certificate," and defines "insured person" to be "you, and if covered, your spouse."
There is nothing ambiguous about this language, taken in its ordinary sense. See
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2208 (1986) (defining "spouse"
as a "man or woman joined in wedlock: married person: husband, wife"). Lachonne and
Earl Bell were divorced December 8, 1994. Earl Bell died June 30, 1995. Earl Bell
was not an "insured person" under either policy since he was neither the individual
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 alleges, the
insurance 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, see Fed. 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

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