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)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ALLSTATE INDEMNITY COMPANY, Plaintiff, v. THOMAS PRICE, et al., Defendants. ) ) ) ) ) CIVIL ACTION 12-0324-WS-B ) ) ) ) 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 1 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 2

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