McKenna v. St. Louis County Police Department et al

Filing 40

RESPONSE to Motion re 38 MOTION for Leave to to Amend Complaint filed by Defendant Apple, Inc.. (Wisniewski, Kathy)

McKenna v. St. Louis County Police Department et al

Doc. 40

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI GREGORY McKENNA, ) ) Plaintiff, ) ) vs. ) ) THE ST. LOUIS POLICE DEPARTMENT, et al., ) ) Defendants. )

Case No. 4:09cv1113 CDP

DEFENDANT APPLE INC.'S RESPONSE TO PLAINTIFF'S MOTION TO AMEND COMPLAINT Defendant Apple Inc. ("Apple") has moved this Court to dismiss the original Complaint filed by Plaintiff Gregory McKenna ("Plaintiff"). In addition to filing an opposition to Apples Motion, Plaintiff seeks leave of Court to file an amended complaint. Plaintiff has a right to amend his Complaint once as a matter of course before a "responsive pleading" is filed. See Fed.R.Civ.P. 15(a). Here, neither Apple nor any other Defendant has filed a "responsive

pleading." See, e.g., Winfrey v. Brewer, 570 F.2d 761, 764 fn.4 (8th Cir. 1978) (noting that "[a] motion to dismiss is not a ,,responsive pleading for purposes of" Rule 15(a)). Thus, Plaintiff has a right to file his proffered amended complaint. However, Apple respectfully requests that this Court exercise its discretion to hold in abeyance the pending Motion to Dismiss filed by Apple, and to consider that Motion as it relates to the Amended Complaint. See, e.g., Harmon v. St. Louis County, 2008 WL 4547187, *2 (E.D.Mo. 2008). Apple contends that the arguments made in its pending Motion to Dismiss apply with equal force to the proposed amended complaint filed by Plaintiff.

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Respectfully submitted, THOMPSON COBURN LLP /s/ Kathy A. Wisniewski Kathy A. Wisniewski [e-mail] John W. Rogers [e-mail] One US Bank Plaza St. Louis, MO 63101 [phone] [phone] (facsimile)

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 30th day of November, 2009, Defendant Apple Inc.s Response to Plaintiffs Motion to Amend Complaint was filed electronically with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record properly registered for electronic notification, and that a true and accurate copy of Defendant Apple Inc.s Response to Plaintiffs Motion to Amend Complaint was forwarded, via first-class mail, postage prepaid, to: Gregory McKenna 9937 Young Drive, H Beverly Hills, CA 90212 /s/ Kathy A. Wisniewski

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