Evans et al v. City of Ann Arbor et al
OPINION AND ORDER TERMINATING WITHOUT PREJUDICE 27 Motion to Dismiss; 28 Motion to Dismiss; 31 Motion to Dismiss; 34 Motion to Dismiss; 35 Motion to Dismiss; DENYING AS MOOT 54 Motion to File Oversized Brief ; DENYING 60 Emerg ency Motion to Strike First Amended Complaint; DENYING AS MOOT 64 Motion for Leave to File Sur-Reply ; DENYING 65 Motion to Strike Amended Complaint; DENYING AS MOOT 68 Motion for Leave to File a Sur-Reply ; 71 ExParte Motion Regarding R eply to Response ; 75 Motion for Leave to File Sure-Reply; 77 Amended Motion for Leave to File a Sur-Reply; 78 Motion for Leave to File Sur-Reply; 81 Motion for Leave to File Sur-Reply; 84 Motion Regarding Reply to Response. IT IS FURTHER ORDERED Defendants must Respond to Plaintiff's 57 Amended Complaint by 7/28/2021. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
EMILY EVANS and MELANIE WELCH,
Case No. 21-10575
CITY OF ANN ARBOR, et al.,
OPINION AND ORDER DENYING MOTIONS TO STRIKE FIRST AMENDED
COMPLAINT, TERMINATING WITHOUT PREJUDICE MOTIONS TO DISMISS, AND
DENYING MOTIONS TO FILE OVERSIZED BRIEFS AND SUR-REPLIES
Plaintiff Emily Evans and her mother, Plaintiff Melanie Welch, bring a fifteencount complaint against individuals and companies that provided Plaintiff Evans
electrical and insulation work for her house, lawyers representing those companies and
individuals, the City of Ann Arbor, Ann Arbor officials, and judicial officers of the
Washtenaw County Circuit Court. (ECF No. 1.)
The complaint was filed on March 15, 2021. On May 17, 2021, Defendants City
of Ann Arbor, Craig S. Strong, James Worthington, Hon. Judge Timothy Connors, Hon.
Judge Carol Kuhnke, and Matthew Krichbaum filed motions to dismiss. (ECF Nos. 27,
28, 31.) On May 28, 2021, Defendants Howard & Howard Attorneys PLLC (“Howard &
Howard”), Brandon Wilson, Dave Anderson, Arbor Insulation, Kirk Brandon, David
Giles, Rob McCrum, Meadowlark Builders LLC, Meadowlark Energy, Michigan Quality
Electric, Robert Patterson, Harry Ramsden, Tina Roperti, Douglas Selby, and Derek
Tuck also moved to dismiss. (ECF Nos. 34, 35.) On June 18, 2021, Defendant Property
Management Specialists Inc. filed an answer. (ECF No. 52.)
On June 18, 2021, Plaintiffs filed an amended complaint without leave from the
court. (ECF No. 57.) In the amended complaint, Plaintiffs added new allegations against
several Defendants, including Defendants that moved to dismiss on May 17, 2021. For
instance, Plaintiffs now allege that Defendants Wilson and Shelby submitted evidence
before Judge Connors that contradicted a signed stipulation, in violation of the Due
Process Clause of the Fourteenth Amendment. (Id., PageID.4936.)
Defendants Howard & Howard and Wilson have filed an “Emergency Motion to
Strike First Amended Complaint.” (ECF No. 60.) They argue that, under Federal Rule of
Civil Procedure 15(a), Plaintiffs amended complaint is untimely. Plaintiffs filed a
response. (ECF No. 61.) Defendants City of Ann Arbor, Craig S. Strong, and James
Worthington then filed a second motion to strike which is virtually identical to the motion
filed by Defendants Howard & Howard and Wilson. (ECF No. 65.) The court has
reviewed the record and does not find a hearing to be necessary. E.D. Mich. LR
7.1(f)(2). Both motions to strike will be denied.
Rule 15(a) governs amendments to complaints made before trial. Under Rule
15(a), “[a] party may amend its pleading once as a matter of course within . . . 21 days
after serving it, or . . . 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.” Fed. R. Civ. P. 15(a)(1). “In all other
cases, a party may amend its pleading only with the opposing party's written consent or
the court's leave.” Fed. R. Civ. P. 15(a)(2).
Plaintiffs did not file their amended complaint within twenty-one days of service of
the original complaint. See Fed. R. Civ. P. 15(a)(1)(A). In addition, they did not amend
their complaint within twenty-one days of the May 17, 2021, motions to dismiss.
Plaintiffs argue that they are permitted to amend their complaint as of right because
they filed an amended complaint within twenty-one days of the motions to dismiss filed
on May 28, 2021.
The court is not convinced that amendment as of right under Rule 15(a) in this
case applies. Rule 15(a) states that the twenty-one-day period begins “after service of a
responsive pleading or . . . after service of a motion [to dismiss] . . . whichever is
earlier.” See Fed. R. Civ. P. 15(a)(1)(B) (emphasis added). “A” is defined as “referring to
something . . . treated as one of a class: one, some, any.” A, Oxford English Dictionary
(2021). The plain text of Rule 15(a) indicates that as soon as any responsive pleading
or motion to dismiss is filed, the clock to amend a complaint as a matter of right begins
to run. The text of Rule 15(a) does not distinguish between responsive pleadings and
motions to dismiss, nor does it distinguish between responsive pleadings and motions
to dismiss filed by different parties. Rule 15(a) is noticeably broad, stating without
conditions that the twenty-one-day period begins after a “responsive pleading” or a
“motion under Rule 12(b), (e), or (f).” Furthermore, the rule explicitly contemplates
scenarios where multiple responses are made to a single complaint. The rule states that
if an answer is filed and a motion to dismiss is filed, the twenty-one-day period begins
whenever the “earlier” document is filed. Fed. R. Civ. P. 15(a)(1)(B). Under Rule 15(a),
Plaintiffs had twenty-one days from the date of the earliest responsive document–here
the May 17, 2021, motions to dismiss–to file an amended complaint as a matter of
The advisory committee notes support this holding. See United States v. Tenn.
Walking Horse Breeders’ and Exhibitors’ Ass’n, 727 F. App’x 119, 124 (6th Cir. 2018)
(quoting United States v. Vonn, 535 U.S. 55, 64 n.6 (2002)) (reasoning that committee
notes “provide a reliable source of insight into the meaning of a rule.”); see also
Miltimore Sales, Inc. v. Int’l Rectifier, Inc., 412 F.3d 685, 689-90 (6th Cir. 2005) (relying
heavily on committee notes to determine the meaning of Federal Rules of Procedure).
The committee notes state that “[t]he 21-day periods to amend once as a matter of
course after service of a responsive pleading or after service of a designated motion are
not cumulative. If a responsive pleading is served after one of the designated motions is
served, for example, there is no new 21-day period.” Fed. R. Civ. P. 15 Advisory
Committee Note (2009).
Here, Plaintiffs are attempting to add together multiple twenty-one-day periods
after Defendants filed motions to dismiss on separate dates. It is uncontested that
Plaintiffs had the opportunity to amend their complaint as a matter of right within twentyone days of the first motions to dismiss filed on May 17, 2021. But now Plaintiffs seek to
establish a second twenty-one-day period and add more days, past the original twentyone. Notably, amendments to the complaint do not solely concern Defendants who
moved to dismiss on May 28. Plaintiffs add new allegations and legal claims against
Defendants who filed motions to dismiss on May 17, and twenty-one days had
indisputably passed since the May 17 motions to dismiss by the time Plaintiffs filed the
amended complaint. (See ECF No. 57, PageID.4936.)
The implications of Plaintiffs’ logic do not end with the May 28 motions. Had
Plaintiffs not filed an amended complaint already, under their reasoning, they could
have gained yet another twenty-one days if another Defendant had filed a motion to
dismiss after the second twenty-one-day period expired. In this case, all Defendants
have filed an answer or a motion to dismiss, but the possibility of twenty-one-day
periods extending for weeks on end is not out of the question.
Plaintiffs’ reasoning does not comply with Rule 15(a). The advisory committee
made clear that there “is no new 21-day period,” and parties cannot add together, or
make “cumulative,” twenty-one-day periods after opposing parties file separate
responsive pleadings or motions to dismiss at different times. 1 Fed. R. Civ. P. 15
Advisory Committee Note (2009).
Although caselaw on this issue is limited, several district courts in the Sixth
Circuit have come to the same conclusion. See NECA-IBEW Pension Fund ex rel.
Cincinnati Bell, Inc. v. Cox, Case No. 11-451, 2011 WL 6751459, at *2 (S.D. Ohio Dec.
22, 2011) (quotations removed) (“The earliest served responsive pleading or motion
begins the twenty-one day period.”); Bormuth v. City of Jackson, Case No. 12-11235,
2012 WL 2184574, at *2 (E.D. Mich. June 14, 2012) (holding that the twenty-one-day
In addition, the advisory committee notes state that the twenty-one-day period
under Rule 15(a) serves to “force the pleader to consider carefully and promptly the
wisdom of amending to meet the arguments in the motion.” Fed. R. Civ. P. 15 Advisory
Committee Note (2009). However, under Plaintiffs’ reading of the rule, they could have
the opportunity to review a motion to dismiss and amend a complaint as of right weeks if
not months after a motion to dismiss is first filed. Such a result would militate against the
goal of forcing Plaintiffs to consider “carefully and promptly” the need to file an amended
complaint and would prevent the court from adequately regulating prejudicial or futile
amendments. Id.; see Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that courts
must consider “undue delay,” “undue prejudice,” and “futility,” among other factors,
when deciding whether to grant leave to amend a complaint).
period began to run in a multi-defendant case after the first answer was filed, despite
the fact that another answer and a motion to dismissed were later filed); Jones v. Pro.
Acct. Servs., Inc., Case No. 16-00013, 2016 WL 6242927, at *2 (E.D. Tenn. Oct. 6,
2016) (reasoning that “the Notes and the Rule itself explain this time period is not
affected by the filing of other pleadings or motions” and concluding in a multi-defendant
case that the time period began when the first response was filed). Plaintiffs fail to cite
any precedent from the Sixth Circuit or Supreme Court that supports their reasoning. 2
Thus, Plaintiffs cannot amend their complaint as a matter of right under Rule 15(a).
Even if Plaintiffs cannot amend their complaint as a matter of right, they may still
file an amended complaint with leave of the court. See Fed. R. Civ. P. 15(a). Consistent
with the liberal pleading standards of federal court, Rule 15(a)(2) directs the court to
“freely give leave [to amend] when justice so requires.” Id.; see 6 Charles Alan Wright &
Defendants Ann Arbor, Strong, and Worthington were the only parties that cited
caselaw in support of Plaintiff. (See ECF No. 65, PageID.6231, June 23 Motion to Strike
(citing Cowan v. Miller, Case No. 15-12428, 2016 WL 4362868 (E.D. Mich. Aug. 16,
2016) (Patti, M.J.); Scott-Blanton v. Universal City Studios Productions, LLP, 244 F.R.D.
67, 69 (D.D.C. 2007)); ECF No. 73, PageID.7113, Plaintiffs’ Response (mentioning
cases cited by Defendants Ann Arbor, Strong, and Worthington in their motion to
strike).) However, the cited cases either occurred prior to the current version of Rule
15(a), Scott-Blanton, 244 F.R.D. at 69, or lacked detailed legal analysis. Cowan, 2016
WL 4362868, at *2. In Cowan, the court concluded that “[w]hen a plaintiff seeks to
amend his or her complaint against multiple defendants, each defendant is treated
separately under Rule 15 for purposes of amending as of right.” Id. The court does not
find this interpretation persuasive. It is highly impractical in many cases to determine
whether an amendment is directed at one defendant, who has recently responded, or
directed at other defendants who responded well in the past. Allegations and claims
against multiple defendants are regularly combined and intimately related. Further, the
requirement that the court examine an amended complaint and determine whether
amendments are directed at a defendant is found neither in the text nor commentary of
Rule 15. Finally, in this case, Plaintiffs’ amended complaint includes new allegations
against Defendants who filed the May 17 motion to dismiss, and May 17 is outside the
most recent 21-day period. (See, e.g., ECF No. 57, PageID.4936.) Even under Cowan’s
logic, amendment as of right is not in this case appropriate.
Arthur R. Miller, Federal Practice and Procedure § 1473 (3d ed. 1998). Underlying this
rule is the principle that “cases should be tried on their merits rather than the
technicalities of pleadings.” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.
1986). “In the absence of any apparent or declared reason—such as 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 by virtue of
allowance of the amendment, futility of amendment, etc.—the leave sought should, as
the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).
This case began only three months ago in March 2021. The parties have not
engaged in discovery, and Plaintiffs have not previously sought to amend their
complaint. Although Defendants have already filed several motions to dismiss,
amendment of the complaint at this early stage would not so severely prejudice
Defendants that rejection of the proposed amendments is warranted. See Duggins v.
Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (stating that courts generally
require “some significant showing of prejudice” to deny a plaintiff leave to amend a
complaint). Thus, the instant motion to strike the amended complaint will be denied, and
Plaintiffs will be permitted to amend the complaint with leave of the court. Fed. R. Civ.
In the instant motion to strike, Defendants Howard & Howard and Wilson request
“guidance” as to the impact of the amended complaint on the pending motions to
dismiss. (ECF No. 60, PageID.6154, 6161.) Because Plaintiffs have filed an amended
complaint, the court will terminate as moot the pending motions to dismiss. See Nowak
v. ABM Indus. Inc., Case No. 21-10774, 2021 WL 1614396, at *1 (E.D. Mich. Apr. 26,
2021) (Levy, J.) (quotations removed) (“An amended complaint supersedes all prior
complaints,” thus “motions directed at the superseded pleading . . . generally are to be
denied as moot.”); Jordan v. City of Detroit, Case No. 11-10153, 2011 WL 4390003, at
*1 n.1 (E.D. Mich. Sep. 21, 2011) (Cleland, J.) (“[A] complaint that has not yet been filed
cannot logically be attacked by a motion to dismiss.”). Defendants will be given fourteen
days from the date of this order to respond to the amended complaint, whether through
an answer or a motion to dismiss. The court makes no finding as to the merits of the
motions to dismiss.
Since Defendants filed the motions to dismiss, Plaintiffs have filed two motions to
file oversize briefs and seven motions to file sur-replies. (ECF Nos. 54, 64, 68, 71, 75,
77, 78, 81, 84.) They request additional briefing to respond fully to Defendants’
arguments. Because the court will terminate as moot Defendants’ motions to dismiss,
additional briefing from Plaintiffs is not at this time necessary. Thus, the court will deny
the motions for oversized briefs and sur-replies. Accordingly,
IT IS ORDERED that the “Emergency Motion to Strike First Amended Complaint”
(ECF No. 60) and the “Motion to Strike Amended Complaint” (ECF No. 65) are DENIED.
IT IS FURTHER ORDERED that the Motions to Dismiss (ECF Nos. 27, 28, 31,
34, 35) are TERMINATED WITHOUT PREJUDICE as moot.
IT IS FURTHER ORDERED that Defendants must respond to Plaintiffs’
Amended Complaint (ECF No. 57) by July 28, 2021.
Finally, IT IS ORDERED that the “Ex Parte Motion . . . to File an Oversize[d]
Brief” (ECF No. 54), the “Motion . . . for Leave to File Sur-Reply” (ECF No. 64), the
“Motion [for] Leave to File a Sur-Reply” (ECF No. 68), the “Ex Parte Motion Regarding
Response” (ECF No. 71), the “Ex Parte Motion Regarding Reply to Response” (ECF
No. 75), the “Motion for Leave to File Sur-Reply” (ECF No. 77), the “Amended Motion
for Leave to File Sur-Reply” (ECF No. 78), the “Motion for Leave to File Sur-Reply”
(ECF No. 81), and the “Motion Regarding Reply to Response” (ECF No. 84) are
DENIED as moot.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 14, 2021
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 14, 2021, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\2110575.EVANS.EmergencyMotiontoStrikeandMotionstoDismiss.RMK.RHC.2.docx
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