Barr v. Board of Regents of the University System of Georgia

Filing 10

ORDER Finding Moot re 4 Motion to Dismiss; Granting 8 Motion to Amend re 1 COMPLAINT. Plaintiff may file his Amended Complaint within 21 days of service of this Order. Signed by Magistrate Judge G. R. Smith on 3/6/18. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ALEX C. BARR,
Plaintiff,
v.

)
)
)
)
)

CV417-203

)

ROARD OF REGENTS OF THE
)
UNIVERSITY SYSTEM OF GEORGIA,)
)
Defendant.
)

ORDER
In response to defendant’s motion to dismiss the Complaint
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, plaintiff
asks to be permitted to file an Amended Complaint curing any
deficiencies. Doc. 8. Defendant opposes, arguing the Court should not
permit amendment as it would be futile.

Doc. 9 (arguing plaintiff’s

claims are all barred as untimely).
Under Federal Rule of Civil Procedure 15(a), a party may amend
his complaint once as a matter of right within 21 days after a motion is
served under Rule 12(b), (e), or (f). Even when a party may not amend
as a matter of right, she may amend with the opposing party's written
consent, or the court's leave. Fed. R. Civ. P. 15(b). “The court should

freely give leave when justice so requires.” Id. While leave to amend is
generally freely given, it is by no means guaranteed. “In making this
determination, a court should consider whether there has been undue
delay in filing, bad faith or dilatory motives, prejudice to the opposing
parties, and the futility of the amendment.” Cooks v. United States,
2015 WL 7069665 at *1 (S.D. Ga. Nov. 13, 2015) (quoting Saewitz v.

Lexington Ins. Co., 133 F. App’x 695, 699 (11th Cir. 2005)).
Here, we are outside that 21-day grace period. And on the face of
his Complaint, it appears plaintiff may indeed be time-barred by 42
U.S.C. § 1981 (providing for a two-year statute of limitations).

But

plaintiff offers an explanation of how he will rescue his Complaint: by
clarifying that his claims are brought under the amended version of
that statute, and thus subject to a four-year statute of limitations. Doc.
8 at 2-3.

While it may yet be dismissed, this amendment is not

obviously futile.
Barr’s motion to amend is GRANTED.

Defendants’ motion to

dismiss (doc. 4) is further deemed MOOT.

Plaintiff may file his

Amended Complaint within 21 days of service of this Order.

2

SO ORDERED, this 6th

day of March, 2018.

3