Smith v. Stephens et al

Filing 55

ORDER GRANTING 43 Defendant's Motion to Strike. Signed by Magistrate Judge Paul J. Komives. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAM SMITH (#241580),
CASE NO. 2:10-CV-13763
JUDGE PAUL D. BORMAN
MAGISTRATE JUDGE PAUL J. KOMIVES

Plaintiff,
v.
LEERAY STEPHENS,
JOHN DOE, ALI MUHAMMAD,
ALICIA SMITH, BRIAN STAIR,
and KYM WORTHY,
Defendants,
/

ORDER GRANTING THE AUGUST 24, 2011 MOTION TO STRIKE PLAINTIFF’S
FIRST AMENDED COMPLAINT (Doc. Ent. 43) and DIRECTING THE CLERK OF THE
COURT TO STRIKE PLAINTIFF’S AUGUST 8, 2011 FIRST AMENDED COMPLAINT
(Doc. Ent. 36)
A.

Plaintiff’s August 8, 2011 First Amended Complaint
At the same time plaintiff filed his August 8, 2011 response (Doc. Ent. 38) to defendant

Worthy’s June 29, 2011 dispositive motion (Doc. Ent. 30), plaintiff also filed an August 8, 2011
first amended complaint (Doc. Ent. 36). In addition to naming Stephens, Doe, Stair, Muhammad,
Smith and Worthy as defendants, plaintiff’s first amended complaint also names as a defendant
Maria A. Petito, described as a Wayne County Assistant Prosecutor. Compare Doc. Ent. 1 ¶¶ 2-7,
Doc. Ent. 36 ¶¶ 7-13.
As was the case with plaintiff’s original complaint, the facts underlying the first amended
complaint span the period from December 2006 to March 5, 2010. Compare Doc. Ent. 1 ¶¶ 1063, Doc. Ent. 36 ¶¶ 15-71. Both the original and the first amended complaints set forth damages.
Compare Doc. Ent. 1 ¶¶ 64-72, Doc. Ent. 36 ¶¶ 72-81.

While the original complaint enumerates ten (10) counts (Doc. Ent. 1 ¶¶ 73-104), the first
amended complaint sets forth twelve (12) claims for relief:
ILLEGAL SEIZURE, 4TH AMENDMENT
RETALIATION, 1ST AMENDMENT
MALICIOUS PROSECUTION, 4TH AMENDMENT
EQUAL PROTECTION, 14TH AMENDMENT
INTERFERENCE WITH ACCESS TO COURTS, 1ST
AMENDMENT
COUNT VI. FALSE ARREST
COUNT VII. FALSE IMPRISONMENT
COUNT VIII. ABUSE OF PROCESS
COUNT IX. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
COUNT X. FRAUD OR MISREPRESENTATION
COUNT XI. DUTY OF REASONABLE CARE
COUNT XII. CONSPIRACY TO VIOLATE FEDERAL AND STATE RIGHTS

COUNT I.
COUNT II.
COUNT III.
COUNT IV.
COUNT V.

Doc. Ent. 36 ¶¶ 82-107.
On August 24, 2011, defendants Stephens, Stair, Muhammad and Smith filed an answer
(Doc. Ent. 44) to the first amended complaint.
B.

Defendants Stephens, Stair, Muhammad and Smith’s August 24, 2011 Motion to
Strike
At the same time they filed their August 24, 2011 answer (Doc. Ent. 44) to plaintiff’s first

amended complaint, defendants Stephens, Stair, Muhammad and Smith also filed a motion (Doc.
Ent. 43) to strike the first amended complaint. Defendants’ motion is based upon Fed. R. Civ. P.
15(a)(1) and (2). Doc. Ent. 43 at 4.
Plaintiff responded to defendants’ motion on September 27, 2011. Doc. Ent. 50.
C.

Discussion

1.

Each of the five (5) named defendants filed an answer to plaintiff’s original complaint,

which plaintiff filed on September 21, 2010 (Doc. Ent. 1). Defendants Stair and Muhammad filed
an answer to the complaint on October 18, 2010. Doc. Ent. 7. Defendant Smith filed an answer
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on November 5, 2010. Doc. Ent. 12. Defendant Stephens filed an answer on November 24,
2010. Doc. Ent. 14. On November 30, 2010, defendant Worthy filed an answer. Doc. Ent. 15.
Pursuant to the Court’s June 2, 2011 scheduling order, discovery in this case closed on
July 17, 2011. Doc. Ent. 24. Following the close of discovery, plaintiff filed his first amended
complaint (August 8, 2011). Doc. Ent. 36.
The Court’s scheduling order had also provided that dispositive motions were due by
August 17, 2011. Doc. Ent. 24. Defendants Stair, Muhammad, Smith and Stephens filed their
dispositive motion on August 17, 2011. Doc. Ent. 41.
2.

In the instant August 24, 2011 motion, defendants Stair, Muhammad, Smith and Stephens

argue that plaintiff’s August 8, 2011 first amended complaint (Doc. Ent. 36) is unauthorized.
Doc. Ent. 43 ¶ 10. In support of this argument, they rely upon certain subsections of Fed. R. Civ.
P. 15(a) (“Amendments Before Trial.”):
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
Fed. R. Civ. P. 15(a)(1) and (2).

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3.

Plaintiff filed his August 8, 2011 first amended complaint more than twenty-one (21) days

after serving his September 21, 2010 original complaint. Fed. R. Civ. P. 15(a)(1)(A).
Plaintiff’s August 8, 2011 first amended complaint was also filed more than twenty-one
(21) days after service of any of the five (5) answers, the latest of which was Worthy’s November
30, 2010 answer (Doc. Ent. 15). Fed. R. Civ. P. 15(a)(1)(B).
The analysis could end there, but it is also noteworthy that plaintiff’s August 8, 2011 first
amended complaint was filed more than twenty-one (21) days after Worthy’s June 29, 2011
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. Ent. 30). Fed. R. Civ. P. 15(a)(1)(B).
The same would be true even if the Court treated the first amended complaint as having been filed
on August 3, 2011 - the date plaintiff signed it. See Houston v. Lack, 487 U.S. 266, 276 (1988)
(holding that a prisoner’s “notice of appeal was filed at the time petitioner delivered it to the
prison authorities for forwarding to the court clerk.”).
4.

Therefore, plaintiff needs to seek leave of this Court to amend his September 21, 2010

complaint. Fed. R. Civ. P. 15(a)(2). In plaintiff’s response, filed September 27, 2011, he states
that , “if this Court rules that Plaintiff’s [first amended complaint] is not allowed under [Fed. R.
Civ. P.] 15(a)(1), Plaintiff is filing a motion for leave to amend along with this response.” Doc.
Ent. 50 ¶ 10.
On September 27, 2011, plaintiff did file a motion for leave to file a first amended
complaint. Doc. Ent. 51. This motion will be addressed under separate cover.
D.

Order
Upon consideration, defendants Stephens, Stair, Muhammad and Smith’s August 24, 2011

motion (Doc. Ent. 43) to strike plaintiff’s August 8, 2011 first amended complaint is GRANTED.

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The Clerk of the Court SHALL strike plaintiff’s August 8, 2011 first amended complaint (Doc.
Ent. 36). However, this ruling is without prejudice to plaintiff filing a motion for leave to amend
his complaint pursuant to Fed. R. Civ. P. 15 (“Amended and Supplemental Pleadings”), as he has
done by his September 27, 2011 motion for leave to file a first amended complaint (Doc. Ent. 51).
IT IS SO ORDERED.
The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a period of
fourteen (14) days from the date of service of a copy of this order within which to file an appeal
for consideration by the district judge under 28 U.S.C. § 636(b)(1).

Dated: March 2, 2012

s/Paul J. Komives
PAUL J. KOMIVES
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record on March 2,
2012 by electronic and U.S. mail.

s/Michael Williams
Relief Case Manager for the Honorable
Paul J. Komives

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