GRAY et al v. FAY SERVICING AND DOES 1 TO 50
ORDER construing filing as a Motion for Leave to Amend Complaint and ordering Plaintiffs to file a Proposed Amended Complaint by December 1, 2020. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 11/17/2020. (ech)
Case 5:20-cv-00377-TES Document 6 Filed 11/17/20 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
GREGORY J. GRAY and EARLENE GRAY,
CIVIL ACTION NO.
FAY SERVICING and DOES 1 TO 50,
ORDER TO FILE A PROPOSED AMENDED COMPLAINT
Defendant Fay Servicing, LLC, has moved to dismiss Plaintiffs Gregory J. Gray
and Earlene Gray’s Complaint [Doc. 1-2] for failure to state a claim. See generally [Doc.
2]. After being served with Fay Servicing’s Motion to Dismiss [Doc. 2], Plaintiffs
requested “an opportunity to file an Amended Complaint.” See generally [Doc. 4].
Although Plaintiffs opposed Fay Servicing’s dismissal motion, they do not address the
substantive arguments Fay Servicing put forth to support a dismissal on the merits.
[Id.]. Instead, Plaintiffs sought leave to amend their Complaint. Accordingly, given
Plaintiffs’ pro se statuses, the Court CONSTRUES their filing as a Motion for Leave to
File an Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Federal Rule of Civil Procedure 15(a) allows Plaintiffs to amend their complaint
“as a matter of course” within “21 days after service of a motion under Rule 12(b), (e),
or (f).” Fed. R. Civ. P. 15(a)(1)(B). Fay Servicing’s Motion, filed on October 1, 2020, is
Case 5:20-cv-00377-TES Document 6 Filed 11/17/20 Page 2 of 3
made pursuant to Rule 12(b). [Doc. 2-1, p. 1]. Thus, Plaintiffs had until October 22, 2020,
to amend their Complaint under Rule 15’s “matter of course” provision. Fed. R. Civ. P.
15(a)(1)(B). Since Plaintiffs are proceeding pro se and receive service via mail pursuant
Federal Rule of Civil Procedure 5(b)(2)(C), three days “are added after the period
[under Rule 15(a)] would . . . expire . . . .” Fed. R. Civ. P. 6(d). This means, in order for
Plaintiffs to amend “as a matter of course,” they must have submitted their proposed
Amended Complaint or set forth the substance of the proposed amendment by
Monday, October 26, 2020. See Fed. R. Civ. P. 6(a)(1)(C) (discussing when the last day of
the period ends on a Saturday, Sunday, or legal holiday).
Even though Plaintiffs requested “an opportunity to file an Amended
Complaint” on October 27, 2020, and missed the “as a matter of course” deadline by one
day, Rule 15(a) also allows them to amend their Complaint with “the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2); [Doc. 4, pp. 1, 8]. Fay
Servicing objected; however, “the court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2); see also [Doc. 5].
In the Eleventh Circuit, though, “[f]iling a motion is the proper method to
request leave to amend a complaint.” Long v. Satz, 171 F.3d 1275, 1279 (11th Cir. 1999).
“A motion for leave to amend should either set forth the substance of the proposed
amendment or attach a copy of the proposed amendment.” Id. (citing Wisdom v. First
Midwest Bank, 167 F.3d 402, 409 (8th Cir. 1999)) (“[P]arties should not be allowed to
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amend their complaint without showing how the complaint could be amended to save
the meritless claim.”). Plaintiffs have, albeit briefly, submitted the substance of their
proposed amendment. [Doc. 4, pp. 3–4]. However, the Court cannot, at this time,
determine whether Plaintiffs’ Motion to Amend should be denied on futility grounds—
grounds on which “the proposed amendment is clearly insufficient or frivolous on its
face.” Campbell v. Emory Clinic, 166 F.3d 1157, 1161–62 (11th Cir. 1999); Davis v. Piper
Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980)).
Therefore, the Court will provide Plaintiffs 14 DAYS to submit a Proposed
Amended Complaint. Carter v. HSBC Mortg. Servs., Inc., 622 F. App’x 783, 786 (11th Cir.
2015) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1999)) (discussing that “undue
delay and prejudice are not factors that allow a district court to deny leave to amend”
and that “[a] pro se plaintiff . . . ‘must be given at least one chance to amend the
complaint before the district court dismisses the action with prejudice,’ . . . where a
more carefully drafted complaint might state a claim”). If the Court grants leave to
amend, Fay Servicing’s Motion to Dismiss will be denied as moot. If leave is denied, the
Court will rule on Fay Servicing’s pending Motion to Dismiss.
SO ORDERED, this 17th day of November, 2020.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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