Hensley v. Redi-Med of Mandeville et al

Filing 12

ORDER AND REASONS denying as moot 5 Motion to Dismiss and granting 11 Motion for Leave to File Amended Complaint. Signed by Judge Carl Barbier on 5/19/2009. (caa, )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY HENSLEY VERSUS REDI-MED OF MANDEVILLE, ET AL CIVIL ACTION NO: 09-47 SECTION: "J" (4)

ORDER AND REASONS Before the Court is the Defendants' Motion to Dismiss Pursuant to FRCP 12(b)(1) and 12(b)(6) (Rec. Doc. 5) as well as Plaintiff's Motion to Amend Complaint for Damages (Rec. Doc. 11). For the reasons below, Plaintiff's Motion to Amend Complaint for Damages is GRANTED, and Defendant's Motion to Dismiss is DENIED as moot. BACKGROUND Plaintiff filed suit seeking damages relating to a drug test administered by the Defendants in connection with a preemployment physical examination. The Defendants filed a motion

to dismiss for failure to state a claim and lack of subject matter jurisdiction. The Defendants argue that the Court does

not have diversity jurisdiction in this matter and that the

plaintiff's claims are prescribed.

The Plaintiff has opposed the

motion and also responded by filing a motion to amend his complaint, which amendment he claims addresses the issues raised in the motion to dismiss.

DISCUSSION Federal Rule of Civil Procedure 15(a) provides that a party may amend its complaint once as a matter of course as long as the opposing party has not filed responsive pleadings. The Fifth

Circuit has held that for the purposes of Rule 15(a) a motion to dismiss is not a responsive pleading. F.2d 1023, 1025 (5th Cir. 1979). McGruder v. Phelps, 608

Accordingly, even though the

Plaintiff is seeking permission of the Court to amend his complaint, such permission is unnecessary, as Plaintiff may amend by right. Although the Defendants filed a reply memorandum

addressing the claims asserted in the Plaintiff's amended complaint, they also requested the opportunity to fully brief the allegations of the amended complaint. Accordingly,

IT IS ORDERED that the Defendants' Motion to Dismiss (Rec. Doc. 5) is DENIED as moot; IT IS FURTHER ORDERED that the Plaintiff's Motion to Amend Complaint for Damages (Rec. Doc. 11) is GRANTED.

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New Orleans, Louisiana this the 19th day of May, 2009.

____________________________ CARL J. BARBIER UNITED STATES DISTRICT JUDGE

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