AAA Cooper Transportation v. Wes-Pak, Inc., et al

Filing 37

MEMORANDUM OPINION AND ORDER directing that both parties may, if they so chose, object to this procedure, or file any new arguments with respect to the 27 Motion to Amend or 11 Motion to Dismiss, by July 27, 2011, as further set out. Signed by Honorable Judge W. Harold Albritton, III on 7/18/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
AAA COOPER TRANSPORTATION, )
)
Plaintiff,
)
)
v.
) Case No. 1:11cv181-WHA-CSC
) (WO)
WES-PAK, INC., and VIMY RIDGE
)
PARTNERS, LLC,
)
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
This case is before the court on a Motion to Amend (Doc. #27) filed by Plaintiff AAA
Cooper Transportation (“AAA Cooper”) on May 20, 2011. Defendant Vimy Ridge Partners,
LLC (“VRP”) opposes the Motion to Amend.
AAA Cooper filed a Complaint (Doc. #1) in this court on March 15, 2011, against WesPak, Inc. (“Wes-Pak”), VRP, and Pratt Industries (USA) Inc. (“Pratt”).1 In the Complaint, AAA
Cooper asserted a “Breach of Contract/Debt & Assumpsit” claim against Wes-Pak; a claim for
attorney’s fees against Wes-Pak; and a fraudulent transfer claim against Wes-Pak, VRP, and
Pratt.2
Wes-Pak filed an Answer (Doc. #9), though it stated in its Answer that it denied that this
court was the proper venue as to AAA Cooper’s fraudulent transfer claim, and also raised venue
and personal jurisdiction as affirmative defenses.

1

Pratt has been dismissed from this case, without prejudice. Doc. #36.

2

AAA Cooper did not denominate each of its complaints as “Counts.”

Subsequently, VRP filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b), arguing that (1) this court did not have personal jurisdiction over VRP; (2)
venue in this court was improper; and (3) the Complaint failed to state a claim upon which relief
could be granted with respect to the fraudulent transfer claim.
AAA Cooper filed a response to the Motion to Dismiss. AAA Cooper also sought to
amend its Complaint, to bolster its assertion that this court has personal jurisdiction and venue
over all of the claims in this case. AAA Cooper’s Amended Complaint added “more factual and
legal bases” for personal jurisdiction and venue, and added a claim of “Fraud and Conspiracy to
Defraud” against Wes-Pak and VRP.
VRP opposes AAA Cooper’s Motion to Amend, citing the same general reasons it listed
in its Motion to Dismiss as reasons why amendment of AAA Cooper’s Complaint is futile. WesPak does not oppose the Motion to Amend.
Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, a party may amend its
pleadings as a matter of course within
(A)
(B)

21 days after serving it, or
if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.

Fed. R. Civ. P. 15(a)(1). However, a party that may not amend as a matter of course “may amend
its pleading only with the opposing party’s written consent or the court’s leave,” and that “[t]he
court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Supreme
Court has elaborated that:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
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merits. In the absence of any apparent or declared reason—such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
In this case, AAA Cooper filed its Complaint, VRP responded by filing a Motion to
Dismiss pursuant to Rule 12(b), and subsequently, AAA Cooper sought leave to file the
Amended Complaint at issue here. VRP opposes AAA Cooper’s Motion on the ground that
amendment would be futile.
As a preliminary response, AAA Cooper asserts that VRP cannot challenge the Motion to
Amend, because it has not yet filed an answer in this case. AAA Cooper would be correct in
2007, but is not correct today. In 2007, Rule 15(a) stated simply that “[a] party may amend the
party’s pleading once as a matter of course at any time before a responsive pleading is served.”
In fact, in that year, the Eleventh Circuit even interpreted a factual scenario very similar to the
one at bar and ruled in the way that AAA Cooper asks this court to rule now. Williams v. Bd. of
Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007) (“If the case has more than
one defendant, and not all have filed responsive pleadings, the plaintiff may amend the complaint
as a matter of course with regard to those defendants that have yet to answer.”).
Yet Rule 15(a) has changed since 2007. In 2009, Rule 15(a) was modified to allow
amendments as a matter of course “if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B) (emphasis added).
This modification makes it clear that Motions to Amend may not be made as a matter of course
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with respect to defendants who have filed either an answer or a Rule 12(b), (e), or (f) motion,
unless the amendment is made within 21 days of the answer or motion. In this case, AAA
Cooper’s Complaint, a pleading to which a responsive pleading is required, was met with VRP’s
Rule 12(b) Motion to Dismiss, and AAA Cooper did not seek leave to amend within 21 days of
VRP’s Motion. Accordingly, AAA Cooper cannot amend as a matter of course with respect to
VRP.
AAA Cooper further substantively opposes VRP’s argument that the Amended
Complaint is futile. This dispute, however, is essentially identical to the dispute between AAA
Cooper and VRP over VRP’s earlier-filed motion to dismiss. Specifically, VRP argues that
AAA Cooper’s Amended Complaint does not satisfy the deficiencies VRP noted in its earlierfiled Motion to Dismiss, while AAA Cooper argues that the Amended Complaint satisfies those
purported deficiencies, to the extent the original Complaint had any deficiencies.
This court concludes that it will evaluate the issue of futility of amendment in this case in
the same way that it would evaluate a motion to dismiss, if such a motion to dismiss were filed
against the Amended Complaint. First, the court notes that “[l]eave to amend a complaint is
futile when the complaint as amended would still be properly dismissed or be immediately
subject to summary judgment for the defendant.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th
Cir. 2007) (emphasis added). Second, VRP’s argument that the Amended Complaint is futile
raises nearly identical objections as VRP’s earlier-filed Motion to Dismiss, and AAA Cooper’s
response raises nearly identical arguments as VRP’s earlier-filed response to VRP’s Motion to
Dismiss. Thus, it is proper for this court to evaluate the opposition of the Motion to Amend in
the context of a motion to dismiss, and in doing so, this court will consider the parties’ arguments
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made with respect to both the earlier briefing on the Motion to Dismiss, as well as the briefing
with respect to the Motion to Amend. The court will consider these arguments as if they were
made in the context of a motion to dismiss the Amended Complaint.
To ensure that the parties have notice and an opportunity to respond to this court’s
decision to analyze the futility argument within the context of a motion to dismiss, it is hereby
ORDERED that both parties may, if they so chose, object to this procedure, or file any new
arguments with respect to the Motion to Amend or Motion to Dismiss,3 by July 27, 2011.
Done this 18th day of July, 2011.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

3

The parties need not file any new arguments, and need not repeat the arguments
previously made.
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