Powell v. Internal Revenue Service

Filing 15

ORDER GRANTING Plaintiff's Unopposed Motion 12 MOTION for Leave to File AMENDED COMPLAINT filed by William E. Powell [E-Filer]., ( Defendant's Answer due by 9/24/2015)-Signed by Magistrate Judge Anthony P. Patti. (MWil) Modified on 9/8/2015 (MWil).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM E. POWELL,
Plaintiff,
v.

Case No. 2:15-cv-11616
District Judge Paul D. Borman
Magistrate Judge Anthony P. Patti

INTERNAL REVENUE
SERVICE,
Defendant.
___________________________________/
ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO AMEND
COMPLAINT (DE 12) AND DEEMING PLAINTIFF’S PROPOSED
AMENDED COMPLAINT (DE 12-1) AS THE OPERATIVE PLEADING
I.

BACKGROUND
Plaintiff filed his complaint and application to proceed in forma pauperis on

May 5, 2015, seeking to compel Defendant to comply with his requests for certain
tax documents under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
(DE 1 and 2.) His application was granted on May 11, 2015 and the U.S. Marshals
issued a summons for Defendant one day later. (DE 9.) On July 6, 2015, Plaintiff
filed a motion for leave to amend his complaint. (DE 12.) The motion was
referred to me pursuant to 28 U.S.C. § 636(b)(1)(a) on August 19, 2015. (DE 13.)
In his motion, Plaintiff asks the Court to allow him to amend his complaint
to include a June 8, 2015 FOIA request that he claims has “only recently [been]

deemed exhausted.” (DE 12 at ¶ 8.) Plaintiff represents that Defendant was served
with the original complaint on May 18, 2015. As of September 3, 2015, however,
the Court’s docket did not reflect that Defendant had been served.
II.

STANDARD
Pursuant to Federal Rule of Civil Procedure 15, a party may amend its

pleadings once as a matter of course 21 days after service, or if the pleading is one
to which a responsive filing 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. Fed. R. Civ. P. 15(a)(1). Otherwise, a party must move the
court or receive the opposing party’s consent to amend a complaint. Fed. R. Civ.
P. 15(a)(2). Leave to amend must be freely given when justice so requires. Id.
III.

ANALYSIS
This matter came before me for a hearing, along with the pending motion to

compel in case number 2:15-cv-11033, Powell v. Internal Revenue Service, on
September 3, 2015. During the hearing, Joseph E. Hunsader appeared on behalf of
Defendant, accepted service of Plaintiff’s first amended complaint, and informed
the Court that Defendant does not oppose Plaintiff’s motion to amend.
Accordingly, Plaintiff’s unopposed motion to amend is GRANTED. The Court
will consider Plaintiff’s proposed first amended complaint, attached as Exhibit A

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to his motion (DE 12-1), as FILED. Plaintiff’s first amended complaint will
hereafter be considered the operative pleading in this matter.
Because the date of service of Plaintiff’s original and/or amended complaint
is unclear, the Court provided Defendant with 21 days from the date of the hearing
in which to file an answer or otherwise respond to Plaintiff’s first amended
complaint. Defendant’s answer is therefore due ON OR BEFORE
SEPTEMBER 24, 2015.
IT IS SO ORDERED.

Dated: September 8, 2015

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on September 8, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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