Ford v. British Petroleum

Filing 12

ORDER granting 8 Motion to Amend Complaint. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRENDIA JOYCIA FORD

CIVIL ACTION

VERSUS

NO. 12-965

BRITISH PETROLEUM

SECTION “G” (2)

ORDER ON MOTION
APPEARANCES: None (on the briefs)
MOTION:

Plaintiff’s Motion to Amend Complaint, Record Doc. No. 8

O R D E R E D:
XXX : GRANTED. Local Rule 7.5 of the Eastern District of Louisiana requires that
memoranda in opposition to a motion be filed and served no later than eight days before
the noticed submission date. No memorandum in opposition to plaintiff’s Motion to
Amend Complaint, Record Doc. No. 8, submitted for decision on August 1, 2012 without
oral argument, was timely submitted. Instead, defendant filed an untimely memorandum
in opposition on July 27, 2012, without seeking leave of court to do so, Record Doc.
No. 11, which I have considered nevertheless. Accordingly, IT IS ORDERED that the
motion is granted for the following reasons.
The policy of the Federal Rules of Civil Procedure is liberal in favor of permitting
amendment of pleadings, and Rule 15(a) evinces a bias in favor of granting leave to amend.
Unless there is a substantial reason to deny leave to amend, the discretion of the district
court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872
(5th Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep.
Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994); Martin’s Herend Imports, Inc. v. Diamond &
Gem Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 597-98 (5th Cir. 1981)). Thus, “[t]he court should freely give leave
when justice so requires,” Fed. R. Civ. P. 15(a)(2), but such leave “is by no means
automatic.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation
omitted). Relevant factors to consider include “undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party, and futility of amendment.” Id.

No scheduling order setting a deadline to amend pleadings has yet been entered in
this matter. Under these circumstances, I cannot find that undue delay, dilatory motive or
bad faith are involved in the filing of the motion. It does not appear that undue prejudice
to the opposing party in its ability to prepare defenses would result from allowing the
amendment, since ample preparation time remains and no trial date has yet been set.
Finally, I cannot conclude on the basis of the current record that the amendment is futile.
In addition, a motion to dismiss has been filed and dismissed without prejudice as
premature, Record Doc. Nos. 7 and 10, and dismissal for failure to state a claim ordinarily
should not occur before plaintiff is provided with an opportunity to amend. LitsonGruenber v. JPMorgan Chase & Co., No. 7:09-cv-056-0, 2009 WL 4884426, at *6 (N.D.
Tex. Dec. 16, 2009) (citing Hart v. Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000));
accord Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329
(5th Cir. 2002). This is that opportunity. For all of the foregoing reasons, leave to file the
amendment is granted.
New Orleans, Louisiana, this

31st

day of July, 2012.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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