Barnett v. Legacy Hospitality, LLC et al
ORDER denying  Motion to Voluntary Dismiss unjust enrichment claim; denying  Motion to Amend Complaint. Signed by Magistrate Judge Katherine P. Nelson on 2/11/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
LISA SCOTT BARNETT,
LEGACY HOSPITALITY, LLC,
PHILIP HARRIS, & JILL HARRIS, )
CIVIL ACTION NO. 15-00628-N
The Complaint in this action alleges claims under the federal Fair Labor
Standards Act and a state law claim for unjust enrichment against the Defendants.
(Doc. 1). The Defendants have filed a motion for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) as to the unjust enrichment claim, arguing that
it is preempted by the FLSA. (Docs. 7 – 8). In her timely filed response (Doc. 19)
in opposition to the motion, Plaintiff Lisa Scott Barnett “maintains her opposition to
Defendants’ federal preemption argument and does not waive any arguments,” but
provides no substantive argument in opposition. Instead, Barnett requests leave
either to amend her complaint or to voluntarily dismiss her unjust enrichment claim
Barnett asserts that the Rule 12(c) motion is premature because she may still seek to
amend her complaint under Federal Rule of Civil Procedure 15; thus, she asserts, the
pleadings are not “closed.” However, prior to filing their motion, the Defendants filed their
answer (Doc. 5) to the complaint, without asserting counter- or cross-claims; thus, the
pleadings are deemed “closed” for purposes of Rule 12(c). See Lillian B. ex rel. Brown v.
Gwinnett Cty. Sch. Dist., No. 15-12159, 2015 WL 7295351, at *1 & n.1 (11th Cir. Nov. 19,
2015) (per curiam) (unpublished) (“By the plain language of Rule 12(c), a party may not
move for judgment on the pleadings until ‘[a]fter the pleadings are closed.’ The pleadings are
closed only when a complaint and answer have been filed[,]… [a]t least where … neither
Federal Rule of Civil Procedure 41(a), governing the voluntary dismissal of
“actions,” does not permit Barnett to solely dismiss her unjust enrichment claim.
“Rule 41 allows a plaintiff to dismiss all of his claims against a particular defendant;
its text does not permit plaintiffs to pick and choose, dismissing only particular
claims within an action. A plaintiff wishing to eliminate particular claims or issues
from the action should amend the complaint under Rule 15(a) rather than dismiss
under Rule 41(a).”
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir.
2004) (quotation omitted). Accord Campbell v. Altec Indus., Inc., 605 F.3d 839, 841
n.1 (11th Cir. 2010) (per curiam).
As such, her motion for voluntary dismissal of
her unjust enrichment claim, embedded in her response (Doc. 19), is DENIED.
Barnett has also requested, in the alternative, that she be permitted to
“amend her complaint to provide a more definite statement or withdraw her unjust
enrichment claim.”2 (Doc. 19 at 2). Under S.D. Ala. CivLR 15(b), a “motion to
amend a pleading must state specifically what changes are sought by the proposed
amendments[, and t]he proposed amended pleading must be filed as an attachment
party counter- or cross-claims.”). As such, the motion is not premature. But see id. at *3
(“The District hadn’t filed an answer when it moved for judgment on the pleadings, so the
pleadings weren’t closed at that time. Because a party may not move for judgment on the
pleadings until the pleadings are closed, the district court should have denied the District's
Rule 12(c) motion as procedurally premature.”).
The Defendants filed and served their answer on January 15, 2016. (Doc. 5). Thus,
Barnett could have amended her complaint once as a matter of course to drop her unjust
enrichment claim or provide a more definite statement had she done so by February 5, 2016.
See Fed. R. Civ. P. 15(a)(1)(B). Because she did not, she may now amend her complaint
“only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
to the motion to amend.”3
Barnett’s perfunctory request to amend hedges on the
specific changes she seeks, and she has not attached a proposed amended complaint
to her response. Accordingly, Barnett’s motion for leave to amend her complaint,
embedded in her response (Doc. 19), is DENIED, without prejudice to her ability to
request such relief in a separate motion that complies with CivLR 15(b).
The Court’s submission order (Doc. 10) on the Defendants’ Rule 12(c) motion
remains in effect.
DONE and ORDERED this the 11th day of February 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Moreover, “[a]ny amendment to a pleading, whether filed as a matter of course or upon a
motion to amend, must reproduce the entire pleading as amended and may not incorporate
any prior pleading by reference.” S.D. Ala. CivLR 15(a).
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