McCorvey v. United States of America

Filing 58

Order granting the plf's 49 Motion to file Second Amended Complaint. The plaintiff's Second Amended Complaint (Doc. 49-1) is now the operative complaint in this matter. The following filings are MOOT: the government's 6 motion f or an extension of time to file responsive pleading; the plaintiff's 14 motion for an extension of time to file a response to the Court's April 22, 2013 Order; the government's original 18 motion to dismiss; the government's 27 motion to close the briefing schedule; and the plaintiff's responses to the government's original motion to dismiss (Docs. 43 , 44 and 46 ). The following filings are STRICKEN: the First Amended Complaint (Doc. 45 ); and the p laintiff's pro se motions, filed prior to the withdrawal of his attorney (Docs. 29 , 30 , 32 , 33 and 36 ). Responses to the 57 Motion to Dismiss due by 1/8/2014. Replies due by 1/22/2014. Motion to be taken under submission on 1/22/2014. Signed by Magistrate Judge William E. Cassady on 12/12/2013. copy mailed. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES E. McCORVEY,
Plaintiff,

:
:

v.

:

UNITED STATES DEPARTMENT OF
VERTERANS AFFAIRS,

:

Government.

CA 12-00757-KD-C

:
ORDER

This matter is before the Court on the plaintiff’s motion seeking leave to file an
amended complaint (Doc. 49) and the government’s motion (Doc. 57) to dismiss the
plaintiff’s proposed amended complaint (Doc. 49-1). The government previously filed a
motion to dismiss plaintiff’s original complaint on May 20, 2013 (Doc. 18). However, on
September 30, 2013, the plaintiff filed an amended complaint (the “First Amended
Complaint”) (Doc. 45), without leave of Court, and, on October 16, 2013, the plaintiff
filed a motion to file a second amended complaint (Doc. 49). The plaintiff attached a
copy of his proposed amended complaint (the “Second Amended Complaint”) (Doc. 491) to his motion requesting leave to file. The plaintiff indicated to the government’s
attorney that the Second Amended Complaint is the final pleading he will file at this
time. (See Doc. 57 at 2.) Accordingly, the government treated the plaintiff’s Second
Amended Complaint (Doc. 49-1) as the plaintiff’s current pleading containing and fully
comprising all the claims that the plaintiff intends to pursue in this matter. As such, the
government responded to plaintiff’s Second Amended Complaint (Doc. 49-1) by filing a
motion to dismiss (“Second Motion to Dismiss”) pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b)(6). (Doc. 57.)
Plaintiff’s Motion to Amend
As stated above, before the plaintiff filed the motion to amend that is currently
before the Court (Doc. 49), the plaintiff filed a First Amended Complaint without being
granted leave (Doc. 45). Accordingly, the First Amended Complaint (Doc. 45) is hereby
STRICKEN for being improperly filed without leave of Court. See Fed. R. Civ. P.
15(a)(2). Because the First Amended Complaint is stricken, the undersigned treats the
plaintiff’s motion to file his Second Amended Complaint (Doc. 49) as a motion to
amend his original complaint (Doc. 1).
Having reviewed the plaintiff’s motion for leave to file his Second Amended
Complaint (Doc. 49) and having received no objection to the filing of the Second
Amended Complaint from the government, (see Doc. 57 at 2-3, the government’s Second
Motion to Dismiss (treating plaintiff’s proposed Second Amended Complaint as a
superseding pleading and responding thereto)), the undersigned has determined that
plaintiff’s motion (Doc. 49) is hereby GRANTED.
Remaining Earlier Filed Motions
Because the undersigned has granted the plaintiff’s motion to file his Second
Amended Complaint, (see infra), and the government has filed a Second Motion to
Dismiss directed at the Second Amended Complaint (Doc. 57), the undersigned has
determined that the government’s original motion to dismiss (Doc. 18) and the
plaintiff’s responses thereto (Docs. 43, 44 and 46) are MOOT.1
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The undersigned acknowledges that the plaintiff’s responses to the government’s
motion to dismiss include requests to amend the complaint. (See Docs. 43, 44 and 46.) Those
requests, however, were superseded by plaintiff’s subsequent motion to file his Second

2

Furthermore, prior to the withdrawal of plaintiff’s former attorney, plaintiff
improperly filed multiple pro se motions (Docs. 29, 30, 32, 33 and 36). When a party is
represented by an attorney of record, all filings on behalf of that party must be signed
by his attorney. Compare SD ALA LR 5.1 (b) (“At least one attorney or party appearing
in any action in this Court shall sign each document filed. In addition, there shall be
included directly beneath the signature line, the typed or printed name, address,
telephone number (voice and facsimile) and attorney identification number of all
attorneys of record in the action representing that party.”) with SD ALA LR 83.5(h)
(“Unless disbarred or suspended, attorneys shall be held at all times to represent the
parties for whom they appear of record in the first instance until, after formal motion
and notice to such parties and to opposing counsel, they are permitted to withdraw
from such representation.”). Plaintiff’s attorney did not withdraw from this case until
July 29, 2013 (Doc. 41), and, thus, plaintiff’s pro se motions, filed prior to the withdrawal
of his attorney (Docs. 29, 30, 32, 33 and 36), are hereby STRICKEN for being improperly
filed.2 See Charest v. Mitchem, 1:10-cv-00067-CG-C (S.D. Ala. March 26, 2013) (Doc. 67,
Endorsed Order striking the petitioner’s filings “because petitioner is represented by
counsel and may not file pro se pleadings while represented”); July v. Bd. Of Water &
Sewer Comm’rs, CA No. 11-0635-WS-N, 2013 WL 66646, at *2 n.2 (S.D. Ala. Jan. 4, 2013)
Amended Complaint (Doc. 49).
2

The undersigned notes that the plaintiff is not prejudiced by the striking of his
pro se motions because the relief requested by the plaintiff in said motions was addressed by the
Court at the time of the July 29, 2013 hearing. (Compare Docs. 29, 30, 32, 33 and 36 with Doc. 41.)
Furthermore, the plaintiff’s requests in those motions to amend his complaint (Docs. 29, 30, 32,
33 and 36), and the Court’s Order carrying the plaintiff’s requests to amend his complaint until
the time of the next hearing (Doc. 41), were superseded by the plaintiff’s most recent motion
seeking leave to amend his complaint (Doc. 49), which was, in turn, granted by the undersigned
(see infra).

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(noting that the plaintiff’s motion was defective because it was filed pro se when
plaintiff was represented by counsel); United States v. Hands, No. CRIM.A. 97-0024-CB,
Civ.A. 99-1087-CB, 2005 WL 1614657, at *1 (S.D. Ala. June 22, 2005) (striking pro se
motion filed by plaintiff because plaintiff was represented by counsel); see also
Hutchinson v. Florida, 677 F.3d 1097, 1107 (11th Cir. 2012) (“Even if a client wanted to
correct his lawyer’s mistakes, he would not be entitled to do so. A prisoner does not
have a right to file pro se pleadings while represented by counsel.”) (citing United States
v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998)).
Additionally, three other motions previously filed in this matter are now moot.
The government’s motion for an extension of time to file its responsive pleading (Doc.
6) is deemed MOOT because the government has responded to plaintiff’s original
complaint and plaintiff’s second amended complaint.

(See Docs. 18 and 57.)

The

plaintiff’s motion for an extension of time to file a response to the Court’s April 22, 2013
Order (Doc. 14) is deemed MOOT because the plaintiff has filed said response (Doc. 15)
and it has been accepted by the Court (see Doc. 25 at 2 n.3). The government’s motion to
close the briefing schedule and take the government’s original motion to dismiss under
consideration (Doc. 27) is MOOT due to the Court’s previous order on the
government’s motion to dismiss, entered July 29, 2013 (Doc. 41).
Government’s Second Motion to Dismiss
The plaintiff’s Second Amended Complaint (Doc. 49-1) is now the operative
complaint in this matter and supersedes the original complaint and any other amended
pleadings previously filed by the plaintiff.

Therefore, when considering the

government’s Second Motion to Dismiss (Doc. 57), the undersigned will evaluate only
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the plaintiff’s Second Amended Complaint (Doc. 49-1), which comprises all of plaintiff’s
allegations and claims. However, the plaintiff will be given an opportunity to file a
response to the government’s Second Motion to Dismiss (Doc. 57). Plaintiff’s response
must be filed on or before January 8, 2014. Any reply brief filed by the government
must be filed on or before January 22, 2014. After January 22, 2014, the Court will take
this matter under submission and all briefing will be CLOSED.
Lastly, the deadline for the parties to meet and confer regarding discovery by
December 20, 2013, is STAYED until after the government’s Second Motion to Dismiss
is resolved.
CONCLUSION
For the reasons stated above, the following is ORDERED:
1.
GRANTED.

The plaintiff’s motion to file the Second Amended Complaint (Doc. 49) is
The plaintiff’s Second Amended Complaint (Doc. 49-1) is now the

operative complaint in this matter.
2.

The following filings are MOOT: the government’s motion for an

extension of time to file responsive pleading (Doc. 6); the plaintiff’s motion for an
extension of time to file a response to the Court’s April 22, 2013 Order (Doc. 14); the
government’s original motion to dismiss (Doc. 18); the government’s motion to close the
briefing schedule and take the government’s original motion to dismiss under
consideration (Doc. 27); and the plaintiff’s responses to the government’s original
motion to dismiss (Docs. 43, 44 and 46).
3.

The following filings are STRICKEN: the First Amended Complaint (Doc.

45); and the plaintiff’s pro se motions, filed prior to the withdrawal of his attorney (Docs.
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29, 30, 32, 33 and 36).
4.

Plaintiff must file his response to the government’s Second Motion to

Dismiss on or before January 8, 2014. Any reply brief filed by the government must be
filed on or before January 22, 2014. After January 22, 2014, the Court will take this
matter under submission and all briefing will be CLOSED.
5.

The deadline of December 20, 2013, for the parties to meet and confer

regarding discovery is STAYED until after the government’s Second Motion to Dismiss
is resolved.
DONE and ORDERED this the 12th day of December, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE  

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