Lewis v. The City of Wadley et al

Filing 12

ORDER denying without prejudice 5 Motion to Remand to State Court; denying 8 Motion to Recover Costs in the Event of Remand. Signed by Judge J. Randal Hall on 09/30/2016. (thb)

IN THE UNITED

STATES

DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*

WESLEY L. LEWIS,
Plaintiff,

*

v,

*

THE CITY OF WADLEY,

CV 1:16-106

a

municipal Corporation
organized under the laws of
the State of Georgia, HAROLD
MOORE, individually and as
Mayor, City of Wadley, IZELL
MACK, individually and as
Councilman, City of Wadley,
JOHN MAYE, individually and as
Councilman, City of Wadley,
KENDRICK McBRIDE, individually
and as Councilman, City of
Wadley, ELIZABETH MOORE,
individually and as
Councilwoman, City of Wadley,
JERRY THOMAS, individually and
as Councilman, City of Wadley,

*

*

Defendants.

ORDER

Presently before the Court is Plaintiff's Motion to Remand
(docs.

5,

5-1),

Defendants'

Motion

to

Recover

Costs

Response

(doc.

6) .

(doc.

6),

Plaintiff

and Defendants'
argues

that

the

Court should remand his case to state court because at some date

in the future he will amend his complaint to remove the federal
law claims.

Plaintiff also makes a veiled request to amend his

complaint

within

his

motion

to

remand.

Defendants

argue

that

Plaintiff's motion to remand is premature because he has not yet
properly

amended

his

complaint.

The

Court

agrees

with

Defendants.

Before
file

a

filing

motion

15(a).

To

to

a motion
amend

properly

to

under

file

a

remand,

Plaintiff must

Federal

motion

Rule

to

of

amend

Civil

under

properly
Procedure

Rule

15(a),

Plaintiff must abide by the guidelines of Federal Rule of Civil
Procedure

1209,
7 (b)

7(b).

1222

See

Posner

(11th Cir.

requires

that

with

Essex

Ins.

1999) (citing Fed.

any

"application to

shall be by motion which
state

v.

Co.,

R. Civ.
the

the

grounds

forth the relief or order sought."

P.

court

. . . shall be made

particularity

Ltd.,

F.3d

7(b)).
for

Rule

an

order

in writing,

shall

therefor,

Thus,

178

and

shall

set

"where a request

for

leave to file an amended complaint simply is imbedded within an

opposition memorandum,
Posner,

178 F.3d at 1222.

Plaintiff's

request

construed as such,
It

lies

15(a).
amend,

the issue has not been raised properly."

within

to

amend his

complaint,

does not comply with Rule 15(a)

his

Additionally,

motion

to

remand

and

fails

if

it

can be

or Rule 7(b).
to

cite

Rule

it uses the language "dismiss" rather than

and Plaintiff fails to offer the Court a copy of his new

amended complaint.

Thus,

this Court finds that Plaintiff has

not yet properly filed a motion to amend his complaint.

Because

Plaintiff

amend his complaint,

has

yet

properly

filed

a motion

his

complaint,

his

the

Court

retain

Until Plaintiff properly moves to amend

federal-law

claims

subject-matter

will

remain

pending

jurisdiction.

As

the Court retains federal subject-matter jurisdiction,
remand

this

Motion

to

Plaintiff
Because

case.

Remand

Therefore,
(doc.

to

file

a

this

case

has

moot the Defendants'

ORDER ENTERED
September,

to

this Court cannot grant him leave to remove

his federal law claims.

will

not

5)

proper
not

the

WITHOUT

motion
been

Court

DENIES

PREJUDICE,

to

amend

remanded,

and

if

the

Motion to Recover Costs.

at

Augusta,

Georgia,

he

long as

it cannot

Plaintiff's
welcomes

so

Court

(Doc.

DENIES

as

6.)

2016.

HALL

IITE0 STATES DISTRICT JUDGE
DISTRICT

the

desires.

this ££cy^ day

ttlDAL

and

OF GEORGIA

of