Allstate Indemnity Company v. Price et al

Filing 47

Order granting 45 & 46 Motions to Strike 36 Amended Complaint. The second amended complaint (doc. 36) is STRICKEN. Plaintiff is ordered to file a third amended complaint as set out by 10/19/2012. Signed by Chief Judge William H. Steele on 10/15/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLSTATE INDEMNITY COMPANY,
Plaintiff,
v.
THOMAS PRICE, et al.,
Defendants.

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) CIVIL ACTION 12-0324-WS-B
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ORDER
The amended complaint contains two counts. The first is styled,
“Arson/Misrepresentation,” and the second is styled, “Failure to Cooperate.” (Doc. 12).
The defendants filed a motion to dismiss on the grounds of failure to comply with Rule
9(b). (Doc. 13). The Court granted the motion as to Count One and denied the motion as
to Count Two. (Doc. 32). The Court ordered the plaintiff to file and serve “a second
amended complaint that complies with Rule 9(b), failing which this action will proceed
on Count Two only.” (Id. at 4).
The plaintiff filed a second amended complaint, but this iteration contains not two
but five counts. (Doc. 36). The defendants have filed motions to strike the second
amended complaint because, rather than simply adding the missing factual detail as to
Count One, the plaintiff added several new claims. (Docs. 45, 46).1
Because the plaintiff has previously amended as of right, it cannot amend again
without leave of Court or written consent of the defendants. Fed. R. Civ. P. 15(a)(2).
The plaintiff has not presented any written consent of the defendants, and the only leave
the Court has granted is leave to amend Count One in order to comply with Rule 9(b).
Because the plaintiff has neither sought nor received judicial permission to add new
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The plaintiff also added a new allegation to the failure-to-cooperate claim. (Doc.

36 at 13, ¶ 47).

claims or to amend the failure-to-cooperate claim, its second amended complaint
constitutes an unauthorized amendment.
For the reasons set forth above, the motions to strike are granted. The second
amended complaint is stricken. The plaintiff is ordered to file and serve, on or before
October 19, 2012, a third amended complaint that alters the first amended complaint
only by providing additional Rule 9(b) factual material concerning Count One of the first
amended complaint. Permission to file a fourth amended complaint making any other
additions, deletions or alterations must be sought by motion and obtained before filing.
DONE and ORDERED this 15th day of October, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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