EJC6, LLC v. City of Johns Creek, Georgia et al

Filing 24

OPINION AND ORDER that Plaintiff EJC6, LLC's Motion for Leave to File Second Restated and Amended Petition 8 is GRANTED. Following entry of this Order, the Clerk of Court is directed to re-docket the Second Restated and Amended Petition [8.1], as filed on the date of this Order. Defendants shall file their response to the Second Amended Petition on or before March 11, 2016. IT IS FURTHER ORDERED that Plaintiff's Motion for Partial Summary Judgment 4 , Second Motion for P artial Summary Judgment 16 , and Motion for Leave to File Supplemental Brief 21 are DENIED AS MOOT. IT IS FURTHER ORDERED that Defendants Motion to Dismiss 7 and Motion for Extension of Time to Answer 11 are DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 2/19/2016. (anc)

the Honorable Mike Bodker’s (“Defendants”) Motion to Dismiss [7] (“Motion to
Dismiss”), and Defendants’ Motion for Extension of Time to Answer [11]
(“Motion for Extension”) Plaintiff’s Second Restated and Amended Petition.
I.

BACKGROUND
On October 22, 2013, Plaintiff filed a Petition for Declaratory Relief [1.1] in

the Superior Court of Fulton County, Georgia, against Defendants, asserting a state
law claim for declaratory judgment that Defendants violated the state constitution.
On March 9, 2015, Plaintiff filed its First Restated and Amended Petition for
Declaratory Relief [1.2, 2] (“Amended Petition”) in the state court, asserting a
claim for declaratory judgment that Defendants violated the state constitution, a
Due Process and Equal Protection claim under the Fourteenth Amendment of the
United States Constitution and 42 U.S.C. § 1983, and a state law claim for
attorneys’ fees and costs under O.C.G.A. § 13-6-11. The Amended Petition asserts
claims based on the Council’s allegedly arbitrary and capricious denial of
Plaintiff’s application for a change of zoning conditions and its “selective,
arbitrary, and discriminatory enforcement” of the Johns Creek Zoning Ordinance.1

1

Plaintiff alleges it owns a 6.738 acre parcel of land on the northeasterly side
of Hospital Parkway (the “Property”). (Am. Pet. ¶ 6). The Property originally was
a portion of a 42.40 acre tract of land zoned for mixed commercial and residential
use. (Id. ¶¶ 8-9, 11-14). Plaintiff plans to build multi-family units on the Property,
in compliance with the zoning requirement, but the application was denied by the
2

On March 16, 2015, the action was removed to this Court. ([1]).2
On March 30, 2015, Defendants filed their Motion to Dismiss, seeking
dismissal of Plaintiff’s Due Process and Equal Protection claims under the
Fourteenth Amendment.
On April 16, 2015, Plaintiff filed its Motion for Leave and attached its
Second Restated and Amended Petition [8.1] (“Second Amended Petition”).
Plaintiff argues it is entitled to file its Second Amended Petition as a matter of right
because it is within twenty-one (21) days of service of Defendants’ Motion to
Dismiss. (Mot. for Leave at 2). If leave of the Court is required to amend its
Amended Petition, Plaintiff argues, leave should be granted because the Second
Amended Petition clarifies Plaintiff’s legal theories and the facts supporting them.
(Id. at 2-3).
The Second Amended Petition asserts (1) a claim for declaratory judgment
that Defendants violated the state constitution; (2) a Fourteenth Amendment Equal
Protection claim;3 and (3) a claim for attorneys’ fees and costs under O.C.G.A.
§ 13-6-11. (Second Am. Pet. ¶¶ 49-67). On April 30, 2015, Defendants filed their
Council. (Id. ¶¶ 15-19, 39-43). Plaintiff alleges that this decision was arbitrary
and capricious. (Id. ¶¶ 44-48).
2
The Amended Petition and Plaintiff’s Motion for Partial Summary Judgment
[4] were filed in the state court, and were attached to Defendants’ Notice of
Removal. They were automatically docketed in this case by the Clerk of Court.
3
Plaintiff did not reassert its Due Process claim. (See [10] at 2).
3

Motion for Extension of Time to Answer Plaintiff’s Second Amended Petition
until the Court rules on Plaintiff’s Motion for Leave.
On May 20, 2015, Plaintiff filed its Second Motion for Partial Summary
Judgment [16], seeking summary judgment on its state law constitutional claim.
On August 11, 2015, Plaintiff filed its Motion for Leave to File Supplemental Brief
[21] to address “new facts” alleged by Defendants.
II.

DISCUSSION
A.

Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file
one amended complaint as a matter of course, if the amended complaint is filed
either within twenty-one (21) days of service of the original complaint or within
twenty-one (21) days of the defendant’s filing of a responsive pleading or Rule 12
motion to dismiss. See Fed. R. Civ. P. 15(a)(1). Amended complaints outside of
these time limits may be filed only “with the opposing party’s written consent or
the court’s leave.” See Fed. R. Civ. P. 15(a)(2).
“The decision whether to grant leave to amend a complaint is within the sole
discretion of the district court.” Laurie v. Ala. Ct. of Criminal Appeals, 256 F.3d
1266, 1274 (11th Cir. 2001). Rule 15 of the Federal Rules of Civil Procedure
provides that “[t]he court should freely give leave [to amend] when justice so

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requires.” Fed. R. Civ. P. 15(a)(2). “There must be a substantial reason to deny a
motion to amend.” Laurie, 256 F.3d at 1274. “Substantial reasons justifying a
denial include ‘undue delay, bad faith, dilatory motive on the part of the
movant, . . . undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Id. (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)). “When the plaintiff has the right to file an amended complaint
as a matter of course, however, the plain language of Rule 15(a) shows that the
court lacks the discretion to reject the amended complaint based on its alleged
futility.” E.g., Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d
1282, 1292 n.6 (11th Cir. 2007) (emphasis in original).
B.

Analysis

Plaintiff argues it is entitled to file its Second Amended Petition as a matter
of right under Rule 15(a). (Mot. for Leave at 1-2). Because Plaintiff previously
amended its Petition before removal, it, out of an abundance of caution, requests
that leave to file be granted as it is warranted under Rule 15(a)(2). (Id.).
Rule 81(c)(1) provides that the Federal Rules of Civil Procedure “apply to a
civil action after it is removed from a state court.” Fed. R. Civ. P. 81(c)(1). Rule
15(a)(1), thus, applied upon removal, and Plaintiff had twenty-one (21) days after
the Motion to Dismiss was filed, to file its Second Amended Petition. See

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Fed. R. Civ. P. 81(c)(1); see also Thomason v. Norman E. Lehrer, P.C., 182 F.R.D.
121, 128 (D.N.J. 1998) (“[A]mendment in state court does not deprive [plaintiff] of
the one ‘free’ pre-answer amendment available in federal court under Rule 15.”);
Talbot v. Sentinel Ins. Co., No. 2:11-CV-01766-KJD, 2012 WL 1068763, at *2
(D. Nev. Mar. 29, 2012) (“[A]mended complaint was filed in state court prior to
removal. Generally, the federal rules do not apply until a case is removed to
federal court.”). This is especially true where, as here, it was Plaintiff’s Amended
Petition that first established federal subject-matter jurisdiction over this case. See
Thomason, 182 F.R.D. at 128.
Plaintiff’s amendments largely apply to its Fourteenth Amendment claim,
and the requested amendments are the first Plaintiff has made to its federal claim.
An amendment by right within twenty-one days after a motion to dismiss is filed is
to allow “the pleader to consider carefully and promptly the wisdom of amending
to meet the arguments in the motion.” Fed. R. Civ. P. 15 Advisory Committee’s
Note to 2009 Amendment.4
Plaintiff filed its Motion for Leave less than twenty-one days after
Defendants filed their Motion to Dismiss. The Court is required to accept the
4

Plaintiff, in response to Defendants’ arguments in its Motion to Dismiss,
chose not to reallege its Due Process claim. Plaintiff’s Fourteenth Amendment
Equal Protection claim is realleged.
6

Second Amended Petition without first determining if the amendments are futile or
otherwise deficient. See, e.g., Fed. R. Civ. P. 15(a)(1); Williams, 477 F.3d at 1292
n.6.5 Even if Plaintiff did not have the right to amend under Rule 15(a)(1), the
Court further determines that leave to amend is warranted.
The Court acknowledges that its delay in considering the amendment
question has prolonged this litigation. The other pending motions, the Court
acknowledges, were filed because there was uncertainty over whether Plaintiff was
entitled or would otherwise be allowed to file its Second Amended Petition.6 Now
that the Court has ruled on the amendment request, it hopes to get the case back on
track.
Plaintiff’s Second Amended Petition is now the operative petition in this
action. As a result, the motions to dismiss and for summary judgment are denied
as moot. See, e.g., Sheppard v. Bank of Am., NA, No. 1:11-CV-4472-TWT,
5

Defendants do not address whether Plaintiff was entitled to file its Second
Amended Petition as of right under Rule 15(a)(1), arguing only that amending the
petition would be futile. (Resp. [12] at 7-9).
6
In their Motion for Extension, Defendants requested an extension of time to
respond to the Second Amended Petition until the Court ruled on Plaintiff’s
Motion for Leave. (Mot. for Extension at 3). Defendants did not file a new motion
to dismiss, or other responsive pleading, to address the Second Amended Petition.
Plaintiff’s Motion for Leave to File Supplemental Brief requests permission to file
a brief to address Defendants’ argument that Plaintiff’s claims are not yet ripe and,
thus, the Court lacks jurisdiction. (Id. at 2-3). Plaintiff argues this additional
briefing is required to address facts that arose after this argument was raised by
Defendants. (Id.).
7

2012 WL 3779106, at *4 (N.D. Ga. Aug. 29, 2012); see also Lowery v. Ala. Power
Co., 483 F.3d 1184, 1219 (11th Cir. 2007) (“[A]n amended complaint supersedes
the initial complaint and becomes the operative pleading in the case.”);
Saulsberry v. Morinda, Inc., No. 1:07-CV-01542-WSD, 2008 WL 416933, at *4
n.6 (N.D. Ga. Feb. 13, 2008). Although new motions and memoranda supporting
them are now required,7 these additional pleadings will allow the Court to consider
the consolidated arguments on Plaintiff’s Fourteenth Amendment claim and the
Court’s jurisdiction over this matter.8
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff EJC6, LLC’s Motion for Leave

to File Second Restated and Amended Petition [8] is GRANTED. Following entry
of this Order, the Clerk of Court is directed to re-docket the Second Restated and
Amended Petition [8.1], as filed on the date of this Order. Defendants shall file
their response to the Second Amended Petition on or before March 11, 2016.

7

The Court notes that the work on the motions that are deemed moot will be
useful in preparing to refile any motions.
8
Because the pending motions to dismiss and for summary judgment are now
deemed moot, the Court also denies, as moot, Defendants’ Motion for Extension
and Plaintiff’s Motion for Leave to File Supplemental Brief. Defendants will have
up to and including March 11, 2016, to respond to Plaintiff’s Second Amended
Petition.
8

IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial Summary
Judgment [4], Second Motion for Partial Summary Judgment [16], and Motion for
Leave to File Supplemental Brief [21] are DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [7] and
Motion for Extension of Time to Answer [11] are DENIED AS MOOT.

SO ORDERED this 19th day of February, 2016.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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