White v. Coventry Healthcare, Inc.

Filing 11

MEMORANDUM OPINION AND ORDER granting 7 Motion to Amend Complaint. The Amended complaint is ordered filed; denying as moot 2 Motion to Dismiss Complaint. Signed by Senior Judge Charles R. Simpson, III on 3/23/2015. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

CHERYL A. WHITE

PLAINTIFF

v.

CIVIL ACTION NO. 3:14CV-645-CRS

COVENTRY HEALTH & LIFE INSURANCE CO., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This matter is before the court on motion of the defendants, Coventry Health & Life
Insurance Co., et al. (collectively, “Coventry”), to dismiss the complaint (DN 2), and motion of the
plaintiff, Cheryl A. White, for leave to file an amended complaint (DN 7).
This matter was removed from the Jefferson County, Kentucky, Circuit Court on September
22, 2014. On that same date, Coventry moved to dismiss the action for failure to state a claim upon
which relief can be granted (DN 2). The electronic filing receipt indicates that the action was
opened by the clerk in the court electronic filing system on September 23, 2014. Electronic service
on the plaintiff was made on that date.
On October 14, 2014, the plaintiff filed a motion seeking leave to file an amended complaint,
attaching the proposed amended complaint, but reciting Fed.R.Civ.P. 15(a)(1)(B) which provides
for the amendment of pleadings once as a matter of course within twenty-one days after service of
a motion under 12(b), such as Coventry’s motion to dismiss.
Leave of court is not required for the filing of an amended pleading as a matter or course
under Fed.R.Civ.P. 15(a)(1)(B). Plaintiff recites, however, that the interest of justice requires that
she be permitted to amend her complaint to add two parties and “to clarify her causes of action to

resolve any uncertainty on the part of the Defendants, in order to redress all of Plaintiff’s
grievances.” DN 7, p. 3.
The language of amended Rule 15(a)(1)(B) contemplates the filing of an amended pleading
as a matter of course in response to a motion to dismiss. The Advisory Committee Notes to the 2009
Amendments states:
[T]he right to amend once as a matter of course terminates 21 days after service of
a motion under Rule 12(b), (e), or (f). This provision will force the pleader to
consider carefully and promptly the wisdom of amending to meet the arguments in
the motion. A responsive amendment may avoid the need to decide the motion or
reduce the number of issues to be decided, and will expedite determination of issues
that otherwise might be raised seriatim.
White unnecessarily afforded Coventry the platform to object to the proposed amended
pleading by filing a motion for leave with her amended complaint. White recites Rule 12(a)(1)(B)
urging that she is entitled to file an amended pleading as a matter of course, yet seeks leave of court
to do so, the procedure under 15(a)(2). In this muddle of terminology and procedure, Coventry
responded to the motion and objected to the request for leave to amend.
Coventry urges that although amendment pursuant to 15(a)(1)(B) is ordinarily a filing as a
matter of course, amendment may be denied where the amendments would be futile, citing
Christiansen v. U.S., No. 5:11-321-KKC, 2013 WL 4521040 (E.D.Ky. Aug. 26, 2013).
The Christiansen case cites Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006), which
addresses “leave to amend” and the granting of such leave “when justice so requires,” thus clearly
addressing permissive leave under 15(a)(2). The court has found no other case but Christiansen
in which Kottmyer v. Maas was relied upon to preclude an amendment as a matter of course under
15(a)(1)(B). Rather, arguments such as futility arise almost exclusively in the context of requests
for leave to file amended pleadings under 15(a)(2). The court finds therefore that the Christiansen
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case is inconsistent with prevailing jurisprudence on this issue, and Coventry’s futility argument
must be rejected. In this court’s view, to hold otherwise would be to emasculate the “as a matter of
course” amendment permitted by Fed.R.Civ.P. 15(a)(1)(B).
We find no prejudice to Coventry by this ruling. Its futility arguments may be readily
incorporated into a motion to dismiss the amended complaint.

Therefore, motions having been made and for the reasons set forth hereinabove and the court
being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that
(1) The motion of the plaintiff, Cheryl A White, for leave to file amended
complaint (DN 7) is GRANTED and the Amended Complaint is ordered FILED
pursuant to Fed.R.Civ.P. 15(a)(1)(B).
(2) The motion of the defendants, Coventry Health & Life Insurance Co., et
al., to dismiss the complaint (DN 2) is DENIED AS MOOT.

IT IS SO ORDERED.

March 23, 2015

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