Stephens v. Atlanta Independent School Systems

Filing 13

OPINION AND ORDER that the Amended Complaint is allowed as a pleading in this action and that it relates back to the Original Complaint. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss 6 is DENIED. Signed by Judge William S. Duffey, Jr on 11/22/2013. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANGELANN STEPHENS,
Plaintiff,
v.

1:13-cv-978-WSD

ATLANTA INDEPENDENT
SCHOOL SYSTEM a.k.a.
ATLANTA PUBLIC SCHOOLS,
Defendant.

OPINION AND ORDER
This matter is before the Court on Defendant’s Rule 12(b) Motion to
Dismiss [6] (“Motion to Dismiss”).
I.

BACKGROUND
This case alleges discrimination and retaliation under Title I of the

Americans with Disabilities Act arising from Angelann Stephen’s (“Plaintiff”)
employment as a high school teacher with the Atlanta Independent School System
(“Defendant” or “APS”). Defendant filed its Motion to Dismiss on the grounds of
insufficient process, insufficient service of process, and lack of personal
jurisdiction.

On December 27, 2012, Plaintiff received a right to sue letter from the
United States Department of Justice – Civil Rights Division. The letter authorized
Plaintiff to bring suit within ninety (90) days of receipt of the letter. Eighty-nine
(89) days later, on March 26, 2013, Plaintiff filed her Complaint with this Court
(the “Original Complaint”). Plaintiff did not serve the Original Complaint on
Defendant. Ninety-nine (99) days after the Original Complaint was filed, on
July 3, 2013, Plaintiff filed her First Amended Complaint (the “Amended
Complaint”) adding additional facts and an additional count alleging retaliation
stemming from the same conduct alleged in the Original Complaint.
On July 12, 2013, one hundred and eight (108) days after the Original
Complaint was filed and nine (9) days after the Amended Complaint was filed,
Plaintiff served the Amended Complaint on Julie Johnson, a paralegal in the APS
Office of General Counsel. Ms. Johnson was authorized to accept service of
process on Defendant’s behalf. Defendant was not ever served with the Original
Complaint.
On July 31, 2013, Defendant filed its Motion to Dismiss. Although not
entirely clear from its submissions, Defendant offers the following argument in
favor of dismissal based on the language of Rule 15(a). Defendant claims that
there are three 21-day windows in which a plaintiff has an unqualified right to

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amend a complaint: (i) 21 days after service of a complaint, (ii) 21 days after
service of a responsive pleading when one is required, and (iii) 21 days after
service of a motion under Rule 12(b), (e) or (f). Because Plaintiff did not amend
within one of these three 21-day windows, and otherwise did not get Defendant’s
consent or the Court’s approval to amend, Defendant argues the amendment should
not be recognized, and because the Original Complaint was not served, this action
was not commenced within the 90 days of the right to sue letter. Defendant
concludes by arguing that this action is thus time-barred.
Defendant offers the additional argument that Rule 4(m) of the Federal
Rules of Civil Procedure required Plaintiff to serve the Original Complaint within
120 days from the date that the Original Complaint was filed, and failure to serve
within this 120-day period requires the Court to dismiss the case without
prejudice.1
Plaintiff argues that the Amended Complaint supersedes the Original
Complaint, that it was served on Defendant, and that it relates back to the Original
Complaint. Because the Original Complaint was filed within 90 days after the
1

Defendant acknowledges that Rule 4(m) provides that, in the event a plaintiff
fails to meet the 120-day service requirement, if Plaintiff “shows good cause” for
the service failure, “the court must extend the time for service for an appropriate
period.” See Fed. R. Civ. P. 4(m). Defendant argues that Plaintiff cannot show
“good cause” for the Court to exercise its discretion to extend the time for service.
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right to sue letter was received, the related-backed Amended Complaint is deemed
to be timely filed.
II.

BACKGROUND
A.

Legal Standard

Rule 12(b)(4) and Rule 12(b)(5) permit dismissal for insufficient process
and insufficient service of process. Fed. R. Civ. P. 12(b)(4), (5). In considering a
defendant’s motion to dismiss, the court accepts the plaintiff’s allegations as true,
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and considers the allegations
in the complaint in the light most favorable to the plaintiff. Watts v. Fla. Int’l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
B.

Analysis

Rule 15(a)(1) of the Federal Rules of Civil Procedure provides:
A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
Fed. R. Civ. P. 15(a)(1). That is, Rule 15(a)(1) allows for amendments as a matter
of course within a time frame that concludes 21 days after service of the complaint
or any allowed responsive pleading or motion to dismiss under Rule 12(b)(e) or (f).
See Fed. R. Civ. P. 15(a)(1). Defendant claims these 21-day windows are
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unambiguously based on the language of Rule 15(a) including that the word
“within” applies to each window. The common meaning of “within” is “not
beyond a particular area, limit, or period of time.” See Cambridge Dictionary.
Thus, amendment as a matter of right applies so long as an amendment is filed
“within,” or “not beyond,” 21 days of service of a pleading, service of a responsive
pleading if required, or the filing of a motion under Rule 12(b)(e) or (f). Defendant
asserts that the Amended Complaint was not filed within any of these three
windows, and thus was not filed as a matter of right. The Court agrees.2 The
addition of the word “within” when the rule was amended in 2009 and the three
specific circumstances allowing an amendment of a complaint as a matter of right
unambiguously outline when an amendment can be made without the consent of

2

The 2009 amendment commentary provides that the changes to Rule 15 were
intended to alter the time that the right to amend a pleading terminates. The 2009
amendments intended to resolve the difference in the treatment of amendments
after the filing of an answer as opposed to other responsive filings, including
motions to dismiss. That is, “the right to amend once as a matter of course is no
longer terminated by service of a responsive pleading.” See Fed. R. Civ. P. 15
commentary; see also Charles Alan Wright et al., Federal Practice and Procedure
§ 1483 (3d ed. 2010) (“The reasons justifying the differing treatment between the
time allowed for amendments as of course when a responsive pleading is served in
contrast to when a motion is served were never clear and produced some strange
results. Thus, Rule 15(a)(1) was rewritten in 2009 to eliminate that distinction.”).
Rule 15(a) is intended to recognize the right of a party to amend its pleading and
the right of the other party not to be prejudiced by the amendment. See Wright et
al., supra, § 1480.

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the opposing party or the approval of the Court. Here, none of these circumstances
existed when the Amended Complaint was filed—the Original Complaint had not
been served, an answer had not been served, and a Rule 12 motion had not been
filed. The Amended Complaint therefore was not filed of right, and Plaintiff did
not have Defendant’s consent or the Court’s permission to file it. As a result it was
not an allowed pleading under Rule 15(a)(1).
The Court considers, however, the consequence of Plaintiff not seeking the
Court’s approval of the amendment before it was made. The general purpose of
the 2009 amendments was to facilitate amendment of pleadings, as of right, so long
as a defendant is not prejudiced by the amendment. See Wright et al., supra,
§ 1480. The long-standing rule is that Rule 15(a) amendments should be liberally
allowed. See Fed. R. Civ. P. 15(a)(2). There also is a long-standing rule that
amendments should be deemed to relate back to the date of original complaints if
to do so would avoid the bar of an applicable limitations period. See Fed. R. Civ.
P. 15(c)(1). Ultimately it is the Court’s duty to apply procedural rules in a way
that advances justice. See Fed. R. Civ. P. 1 (requiring the Court to “construe[] and
administer[] [the Rules] to secure the just, speedy, and inexpensive determination
of every action and proceeding).

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Applying these considerations in the matter before the Court, the Court finds
that allowing the Amended Complaint as a pleading in this action will not
prejudice Defendant. Defendant was, after all, aware of Plaintiff’s claims when the
Amended Complaint was served on it. If the Court does not allow the Amended
Complaint, Plaintiff’s action would be barred by the requirement that Plaintiff
commence her ADA action 90 days after she received her right to sue letter. Had
Plaintiff served the Original Complaint she would have been allowed to amend it
as of right within 21 days of service or within 21 days of Defendant’s answer or
Rule 12 motion, giving her a total of over 40 days to amend. Even if she sought to
amend outside these windows with the Amended Complaint at issue here, the
Court would have, as required, liberally granted a motion to amend.
Under the circumstances before the Court, Plaintiff should not have to forfeit
the claims asserted in this case just because she sought to amend before serving her
Complaint, apparently not studying Rule 15(a) closely enough to realize the
amendment required the Court’s review. Considering that the Amended
Complaint, had it been filed as of right or with the Court’s consent, would relate
back to the Original Complaint, and since the law is well-established that the
amendment of a complaint generally is allowed even though the complaint was not
served, the Court determines that the Amended Complaint should be allowed in

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this case.3
Rule 15(c) provides that amendments relate back to the date of the original
pleading’s filing when “the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to be set out—in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B); see also Mayle v. Felix, 545 U.S.
644, 659 (2005) (“[R]elation back depends on the existence of a common ‘core of
operative facts’ uniting the original and newly asserted claims.”). In this case, the
3

Defendant argues that Leonard v. Stuart-James Co., Inc., 742 F. Supp. 653 (N.D.
Ga. 1990), supports that service of an amended complaint does not constitute
service of the original complaint, which was not itself served. Defendant’s
reliance on Leonard is misplaced. In Leonard, the original complaint was filed on
September 11, 1989, but not served. The amended complaint was filed on
December 7, 1989, and the defendant was served with it on February 14, 1990,
156 days after the original complaint was filed. 742 F. Supp at 660. Under Rule
4(m), a defendant must be served within 120 days after the complaint is filed.
Fed. R. Civ. P. 4(m). The court in Leonard concluded that, while the amended
complaint was served within 120 days of its own filing, that service did not
constitute service within the 120 days after filing of the original complaint as
required by Rule 4(m). Id. at 662. Leonard stands for the proposition that
amending a complaint does not extend the Rule 4(m) time frame for service and
that the operative complaint must still be served within 120 days of the original
complaint’s filing. Id.; see also Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir.
1987) (“We do not believe, however, that the [amendment] started the 120 days
running again from the date when the amended complaint was filed.”). When an
amended complaint has superseded the original complaint, service of the original
complaint is not necessary. See Phillips v. Murchison, 194 F. Supp. 620, 622
(S.D.N.Y. 1961) (“[S]erving a superseded complaint with the summons was not a
proper service of process and [this court] set[s] aside such service as
insufficient.”). Leonard does not apply here, especially because the Court decides
that the Amended Complaint will be allowed.
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Amended Complaint added clarifying facts and an additional count of retaliation
arising out of the occurrences alleged in the Original Complaint. The Amended
Complaint here asserts claims arising out of the “conduct, transactions, or
occurrences” set out in the Original Complaint, and thus the Amended Complaint
relates back to the date the Original Complaint was filed. As a result, this action
was filed within 90 days of Plaintiff’s receipt of her right to sue letter and this
action is deemed timely filed. See, e.g., Caldwell v. Martin Marietta Corp.,
632 F.2d 1184, 1187 (5th Cir. 1980).
III.

CONCLUSION
Accordingly, and for the foregoing reasons,
IT IS HEREBY ORDERED that the Amended Complaint is allowed as a

pleading in this action and that it relates back to the Original Complaint.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss [6] is
DENIED.

SO ORDERED this 22nd day of November, 2013.

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