Burrell v. Carlisle et al

Filing 79

ORDER granting 73 Motion to Strike Second Amended Complaint. Signed by Magistrate Judge Roy Percy on 9/13/18. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
THOMAS BURRELL
v.

PLAINTIFF
CIVIL ACTION NO. 4:17CV170-DMB-RP

WAYNE CARLISLE, et al.

DEFENDANTS

ORDER GRANTING MOTION TO STRIKE SECOND AMENDED COMPLAINT
Defendants have moved to strike plaintiff’s Amended Complaint filed on July 30, 2018
(Docket 71) as plaintiff failed to seek leave of court prior to filing the amended complaint and
specifically had been denied an extension of time to file a motion to amend (Docket 67).
Docket 73. Plaintiff has not filed any response and the time for a response has elapsed.
Federal Rule of Civil Procedure 15(a) dictates that:
(1) 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.
Plaintiff filed his Complaint on December 4, 2017 and an amended Complaint on January
11, 2018. Docket 1. Defendants answered on February 6, 2018 and February 14, 2018.
Docket 4, 10. On July 2, 2018, plaintiff filed a motion for extension of time to file a second
amended Complaint (Docket 61) and that motion was denied on July 18, 2018. Docket 67.
Without any consent from defendants or leave from the court, plaintiff filed what is
entitled Complaint, but is in fact a Second Amended Complaint on July 30, 2018. Docket 71.

Because plaintiff did not comply with Federal Rule of Civil Procedure 15 prior to filing his
Second Amdned Complaint, defendants’ Motion to Strike is GRANTED. Plaintiff’s Amended
Complaint (Docket 2) will remain the active Complaint.
SO ORDERED, this, the 13th day of September, 2018.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE