Payne v. Ortiz et al

Filing 44

ORDER denying without prejudice 43 Motion for Leave to Amend Complaint. Signed by Judge Thomas P. Smith on September 27, 2011. (Gentile, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FREDERICK PAYNE, SR.,
Plaintiff,
v.
FRANCISCO ORTIZ, JR., et al.,
Defendants.

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: Case No. 3:08cv657(CFD)(TPS)
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RULING ON PLAINTIFF’S MOTION TO AMEND [Doc. #43]
The plaintiff has filed a motion for leave to amend his
complaint.

He purports to include the proposed amended complaint

in the motion.
“Although leave to amend a pleading under the Federal Rules of
Civil Procedure ‘shall be freely given when justice so requires,’
such leave will be denied when an amendment is offered in bad
faith, would cause undue delay or prejudice, or would be futile.”
Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198 (2d Cir. 1989)
(citing Foman v. Davis, 371 U .S. 178, 182 (1962)).
In his proposed amended complaint, the plaintiff identifies
only one defendant.

If the court were to grant his motion, the

claims against all other defendants would be considered withdrawn.
See International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d
Cir. 1977) (holding that the amended complaint completely replaces
original complaint), cert. denied, 434 U.S. 1014 (1978). The court
cannot

ascertain

whether

this

is

the

plaintiff’s

intent.

Accordingly, the motion to amend is denied without prejudice.

The

plaintiff may refile his motion accompanied by a separate proposed
amended complaint.

The proposed amended complaint shall include

all defendants and all claims the plaintiff intends to pursue in
this action.

If the plaintiff refiles his motion, the court will

then review the proposed amended complaint to determine whether
leave to amend should be granted.
The plaintiff’s motion to amend [Doc. #43] is DENIED.
SO ORDERED at Hartford, Connecticut this 27th day of September
2011.

/s/ Thomas P. Smith
Thomas P. Smith
United States Magistrate Judge

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