Green v. Southfield et al

Filing 40

OPINION and ORDER Granting 14 MOTION to Strike. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dawn Green,
Plaintiff,
v.

Case No. 15-13479

City of Southfield, et al.,

Sean F. Cox
United States District Court Judge

Defendant.
____________________________________/
OPINION & ORDER
ON THE SOUTHFIELD DEFENDANTS’ MOTION TO STRIKE (D.E. NO. 14)
Plaintiff Dawn Green (“Plaintiff”) filed this action on October 3, 2015. The matter is
currently before the Court on the Southfield Defendants’ Motion to Strike Plaintiff’s Second
Amended Complaint. (D.E. No. 14). The Court finds that oral argument would not aid the
decisional process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan.
The Court therefore orders that the motion will be decided without oral argument. As explained
below, the Court shall grant the Southfield Defendants’ Motion to Strike to the extent that the
Court shall strike the amended complaints filed by Plaintiff as Docket Entry Numbers 6 and 13
because they were filed in violation of Fed. R. Civ. P. 15(a). That leaves Plaintiff’s “First
Amended Complaint and Jury Demand” filed on October 15, 2015 (D.E. No. 4) as the operative
complaint in this action.
The Court shall further order that if Plaintiff wishes to file an amended complaint, she
must file a motion seeking leave to file an amended complaint, with her proposed amended
complaint attached as an exhibit to the motion, no later than March 18, 2016. If Plaintiff does

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not file such a motion by that date and time, the Court will proceed to determine the Southfield
Defendants’ Motion to Dismiss, which has already been fully briefed by the parties.
BACKGROUND
Acting through Counsel, Plaintiff filed this action on October 3, 2015. Plaintiff’s original
complaint (D.E. No. 1) was based upon federal-question jurisdiction and asserted claims under
42 U.S.C. § 1983 against Defendant City of Southfield and six of its police officers, Traffic
Officer Keith Birberick, Sergeant Brian Bassett, Detective Mark Labrosse, Acting Chief Eric
Hawkins, Jeffrey Tinsman, and Bryan Jarrell.
On October 15, 2015, Plaintiff filed a “First Amended Complaint” (D.E. No. 4) (the
second complaint filed by Plaintiff’s Counsel) that added Defendant Geico Indemnity Company
as a Defendant and asserted a state-law “Breach of Contract Claim Against Defendant Geico
Only.” (Id. at Pg ID 41). In that First Amended Complaint, Plaintiff also dropped his claims
against Hawkins, Tinsman, and Jarrell.
On October 21, 2015, Plaintiff’s Counsel filed another complaint that was also titled
“First Amended Complaint” (D.E. No. 6) (the third complaint filed by Plaintiff’s Counsel). The
following day, October 22, 2015, Plaintiff’s Counsel filed “Errata Sheets to First Amended
Complaint and Jury Demand” (D.E. No. 7) stating that it was to “correct either typographical,
grammatical or spacing errors.”
On November 20, 2015, the Southfield Defendants filed a Motion to Dismiss on
November 20, 2015 (D.E. No. 11).
On November 23, 2016, the Court noticed the Southfield Defendants’ Motion to Dismiss
to be heard on March 24, 2016. (D.E. No. 12).

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On December 2, 2016 – without Defendants’ consents and without seeking leave to do so
– Plaintiff purported to file a “Second Amended Complaint” (D.E. No. 13) (the fourth complaint
filed by Plaintiff’s Counsel in this action) that still included claims against the City of Southfield,
Birberick, Bassett, Labrosse, and Geico.
On December 10, 2015, the Southfield Defendants filed a Motion to Strike Second
Amended Complaint. (D.E. No. 14).
On December 19, 2015, Plaintiff filed her “Response in Opposition to Southfield
Defendants’ Motion to Dismiss” (D.E. No. 16). On December 21, 2015 – without seeking
leave to do so – Plaintiff filed “Plaintiff’s Amended Response in Opposition To Southfield
Defendants’ Motion to Dismiss.” (D.E. No. 17). The next day, December 22, 2015, Plaintiff’s
Counsel filed yet another “errata” sheet; this one to correct mistakes in the document filed as
Docket Entry No. 17. (See D.E. No. 18).
On December 24, 2015, Plaintiff filed a response to the Southfield Defendants’ Motion to
Strike. (D.E. No. 20). A few days later, on December 28, 2015, Plaintiff’s Counsel filed an
“errata” sheet (D.E. No. 21), to correct errors in that filing.
On January 4, 2016, the Southfield Defendants filed a Reply Brief in support of their
Motion to Dismiss. (D.E. No. 23).
On January 12, 2016, Plaintiff filed a motion seeking leave to file a “Surreply to respond
to two new cases relied upon by Southfield Defendants in support of their motion to strike
Plaintiff’s Second Amended Complaint.” (D.E. No. 24 at Pg ID). Plaintiff identified those two
cases as: 1) Morjara v. Harvard Vanguard, No. 14-10139, 2015 WL 1276827 (D. Mass. March
20, 2015); and 2) Keiffer v. Tundra Storage LLC, No. 14-3192, 2015 WL 5009012 (D. Minn.

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Aug. 21, 2015). (Id. at Pg ID 479). This Court granted that motion by text-only order on
February 4, 2016.
But Plaintiff did not thereafter file a sur-reply brief in relation to the Southfield
Defendants’ Motion to Strike that discussed Morjara or Keiffer.
Rather, on February 6, 2016 (D.E. No. 35) Plaintiff filed a “Surreply in Opposition To
Southfield Defendants’ Motion to Dismiss,” that does not discuss Morjara or Keiffer – an
entirely different brief than what Plaintiff’s Counsel sought leave to file. In that unauthorized
filing, Plaintiff asserts, among other things, that: 1) if the Court grants Defendants’ Motion to
Dismiss “the Court should accept Plaintiff’s Second Amended Complaint As Leave Granted”
(Id. at Pg ID 604); and 2) the Court should deny Defendants’ Motion to Dismiss or, “[i]n the
alternative, Plaintiff respectfully requests that the Court accept Plaintiff’s second amended
complaint filed on December 2, 2015, as a motion for leave granted.” (Id. at Pg ID 607).
In any event, the parties have exhaustively briefed the pending Motion to Strike and it is
ripe for a decision.
ANALYSIS
Rule 15 of the Federal Rules of Civil Procedure governs the filing of amended
complaints before trial and provides, in pertinent part:
(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
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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) (emphasis added). Thus, under the plain language of the current1 version of
the rule, “[o]nce a party has exhausted its one-time right to amend as a matter of course, it may
make further amendments only with the opposing party’s consent or with leave of court.”
United States v. D’Agostino, 802 F.3d 188, 192 (1st Cir. 2015).
Here, Plaintiff filed her original complaint on October 3, 2015. (D.E. No. 1). Without
obtaining consent of Defendants or leave of this Court, Plaintiff filed an amended complaint on
October 15, 2015 (D.E. No. 4). Thus, by virtue of filing that amended complaint on October 15,
2015, Plaintiff exhausted her one-time right to amend as a matter of course under Rule 15(a)(1)
and cannot make any further amendments to her complaint without the opposing party’s consent
or leave of this Court. Fed. R. Civ. P. 15(a)(1) and (2); United States v. D’Agostino, 802 F.3d at
192; see also 6 Charles Alan Wright, Federal Practice and Procedure, § 1483 (3d ed. 2010)
(explaining that under the current version of Rule 15 “only one amendment as a matter of course
is permitted.”).
Nevertheless, without obtaining either consent of the opposing parties or leave of this
Court, Plaintiff filed a third amended complaint on October 21, 2015 (D.E. No. 6) and then filed
a fourth amended complaint on December 2, 2015 (D.E. No. 13). The Court shall strike those

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The same was true prior to the 2009 amendments to Fed. R. Civ. P. 15. See Ruschel v.
Nestle Holdings, Inc., 89 F. App’x 518, 522 (6th Cir. 2004) (Fed. R. Civ. P. “15(a) makes clear
that amendments to pleadings following the first amendment of right may only be made with the
court’s permission.”).
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pleadings (D.E. Nos. 6 & 13) because they were filed in violation of Fed. R. Civ. P. 15(a).
Nicholson v. City of Westlake, 20 F. App’x 400, 403 (6th Cir. 2001) (Finding that district court
did not abuse its discretion when it struck an amended complaint that was filed in violation of
Fed. R. Civ. P. 15(a)); Prakash v. Atladis U.S.A., Inc., 2010 WL 2653419 at * 2 (N.D. Ohio
2010); Adams v. Mortgage Elec. Reg. Sys., Inc., 2012 WL 9533 at * (E.D. Mich. 2012).
Plaintiff’s Counsel appears to believe that a party does not exhaust its one-time right to
amend as a matter of course under Rule 15(a)(1) if it files an amended complaint after having
filed an original complaint that it did not serve. (See Pl.’s Br. at 5) (Asserting Defendants argue
“that Plaintiff had ‘exhausted’ her one amendment as a matter of course by amending the
unserved original complaint. Defendants are wrong.”) (bolding and underlining in original); see
also Pl.’s Motion for Leave to File Surreply Brief, arguing that the “salient issue before the
Court” is “whether an amendment to the original complaint before it is served” constitutes an
amendment as a matter of course under Rule 15(a)(1)(A), and arguing that it does not).
Plaintiff’s Counsel is mistaken. The plain language of Rule 15(a)(1) does not support his
tortured interpretation of the rule and neither does the Ninth Circuit case he relies upon (Ramirez
v. County of San Bernardino, 806 F.3d 1002 (9th Cir. 2015)) or the other authority cited by
Plaintiff (6 Charles Alan Wright, Federal Practice and Procedure, § 1483 (3d ed. 2010)).
Plaintiff cites Ramirez for the proposition that an amendment to an original complaint
before it is served does not constitute an amendment as a matter of course under Rule 15(a)(1).
But Ramirez says no such thing. In that case, Ninth Circuit considered “whether Federal Rule of
Civil Procedure 15(a) required the Plaintiff, who filed his First Amended Complaint with
consent of the opposing party, to seek leave of court before filing his Second Amended

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Complaint.” Ramirez, 806 F.3d at 1003 (emphasis added). The Ninth Circuit held that the
plaintiff was permitted to file his Second Amended Complaint as a matter of course, without
seeking leave of court. That was because the plaintiff had obtained the defendants’ consent
before filing the First Amended Complaint and, therefore, had not exhausted his one amendment
as a matter of course under Rule 15(a).
Unlike the plaintiff in Ramirez, Plaintiff did not have Defendants’ consent or leave of
Court before filing her First Amended Complaint in this action on October 15, 2015. As such,
Plaintiff exhausted her one amendment as a matter of course on October 15, 2015, and cannot
make any further amendments to her complaint without Defendants’ consent or leave of this
Court.
The Court also rejects Plaintiff’s assertion that Fed. R. Civ. P. 15(a)(1) requires the
original complaint to be served in order to “trigger” the right to file an amended complaint as a
matter of course.2 Plaintiff’s tortured interpretation has no support in the text of the rule, or its
history. The Advisory Committee Notes explain as follows with respect to the 2009
Amendments to Fed. R. Civ. P. 15(a)(1):
Rule 15(a)(1) is amended to make three changes in the time allowed to make one
amendment as a matter of course.

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Moreover, even if Plaintiff’s interpretation of Rule 15(a)(1) was accepted by this Court
(which it is not), it would not aid Plaintiff. Plaintiff argues that Fed. R. Civ. P. 15 “requires the
original complaint to be ‘served’ to trigger the application of 15(a)(1)(A) and the concomitant
right to amend as a matter of course.” (Pl.’s Motion for Leave to File Surreply at 6) (emphasis in
original). Plaintiff acknowledges that her original complaint was filed on October 3, 2015, but
that it was never served. If Plaintiff’s original complaint was never served, then under Plaintiff’s
own interpretation of the rule, her right to file an amended complaint under Rule 15 was never
triggered, and therefore, she would have no right to file an amended complaint as a matter of
course.
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Former Rule 15(a) addressed amendment of a pleading to which a responsive
pleading is required by distinguishing between the means used to challenge the
pleading. Serving a responsive pleading terminated the right to amend. Serving a
motion attacking the pleading did not terminate the right to amend, because a
motion is not a “pleading” as defined in Rule 7. The right to amend survived
beyond decision of the motion unless the decision expressly cut off the right to
amend.
The distinction drawn in former Rule 15(a) is changed in two ways. First, the
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. It also should advance other
pretrial proceedings.
Second, the right to amend once as a matter of course is no longer terminated by
service of a responsive pleading. The responsive pleading may point out issues
that the original pleader had not considered and persuade the pleader that
amendment is wise. Just as amendment was permitted by former Rule 15(a) in
response to a motion, so the amended rule permits one amendment as a matter of
course in response to a responsive pleading. The right is subject to the same
21-day limit as the right to amend in response to a motion.
2009 Advisory Committee Notes to Fed. R. Civ. P. 15 (emphasis added). In short, the 2009
amendments to Rule 15 changed when and how the right to make one amendment as a matter of
course terminates. They do not require the original complaint to be served in order to trigger the
right to make one amendment as a matter of course, and they clearly do not give a party the right
to make more than one amendment as a matter of course.
Accordingly, the Court shall grant the Southfield Defendants’ Motion to Strike to the
extent that the Court shall strike Docket Entry Numbers 6 and 13 because they were filed in
violation of Fed. R. Civ. P. 15(a). That leaves Plaintiff’s First Amended Complaint and Jury
Demand” filed on October 15, 2015 (D.E. No. 4) as the operative complaint in this action.
The Court notes that in her various briefs, Plaintiff has requested that the Court “accept
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Plaintiff’s second amended complaint filed on December 2, 2015, as a motion for leave granted.”
(Id. at Pg ID 607). To the extent that Plaintiff is asking this Court to grant her leave to file the
amended complaints she filed in violation of Fed. R. Civ. P. 15(a), that request is denied.
If Plaintiff wishes to file an amended complaint at this stage of the litigation without
Defendants’ consent, Plaintiff must file a proper motion seeking leave to file an amended
complaint. And pursuant to Local Rule 15.1, any such motion must be accompanied by the
actual proposed amended complaint that Plaintiff seeks to file.
Following that procedure allows Defendants to respond to the motion, setting forth any
grounds they may have to oppose the motion.
The Court shall order that if Plaintiff wishes to file an amended complaint, she must file a
motion seeking leave to file an amended complaint, with her proposed amended complaint
attached as an exhibit to the motion, no later than March 18, 2016, at 5:00 p.m. If Plaintiff does
not file such a motion by that date and time, the Court will proceed to determine the Southfield
Defendants’ Motion to Dismiss, which has already been fully briefed by the parties.
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that the Southfield Defendants’
Motion to Strike is GRANTED to the extent that the Court hereby STRIKES the amended
complaints filed by Plaintiff as Docket Entry Numbers 6 and 13 because they were filed in
violation of Fed. R. Civ. P. 15(a). That leaves Plaintiff’s First Amended Complaint and Jury
Demand” filed on October 15, 2015 (D.E. No. 4) as the operative complaint in this action.
The Court further ORDERS if Plaintiff wishes to file an amended complaint, she
must file a motion seeking leave to file an amended complaint, with her proposed amended

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complaint attached as an exhibit to the motion, no later than March 18, 2016, at 5:00 p.m.
If Plaintiff does not file such a motion by that date and time, the Court will proceed
to determine the Southfield Defendants’ Motion to Dismiss, which has already been fully
briefed by the parties.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: February 22, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 22, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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