Wells v. Kessler Corporation et al

Filing 19

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to File Amended Complaint is DENIED. ECF No. 18 . On or before January 18, 2018, Plaintiff shall file a properly supported motion for leave to amend his complaint, setti ng forth the nature of the amendment, including any change in parties, legal claims, or factual allegations, and explaining the reasons therefore. Failure to comply with this Order will result in the Court striking the Proposed Amended Complaint (ECF No. 17 ). IT IS FURTHER ORDERED that Plaintiffs pro se motion for subpoenas is DENIED. ECF No. 16 . Signed by District Judge Audrey G. Fleissig on 01/04/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERRY S. WELLS,
Plaintiff,
vs.
KESSLER CORPORATION,
CHARLES C. MCCLOSKEY,
LINCOLN CORPORATION,
DAVID MARK ALLEN,
PAL G. CONKEY, and
UNKNOWN NAMED DEFENDANTS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. 4:17-cv-02709-AGF

MEMORANDUM AND ORDER
This matter is before the Court on review of the record. On January 3, 2018, pro se
Plaintiff Kerry Wells filed an amended complaint removing some Defendants, naming new
Defendants, and amending his claims and allegations. The same day, Plaintiff filed a
“Request for Judge/Court to Subpoena United States Patent and Trademark Office” (ECF
No. 16), in which Plaintiff asks the Court for assistance in issuing subpoenas for testimony
and documents from various witnesses.
Under Federal Rule of Civil Procedure 15(a)(1), a party may amend his pleading
once as a matter of course within 21 days after serving it, or as relevant here, within 21 days
after service of a motion under Rule 12(b), whichever is earlier. Fed. R. Civ. P. 15(a)(1).
In all other cases, a party may amend its pleadings only with the opposing party’s written
consent or the Court’s leave. Fed. R. Civ. P. 15(a)(2).

Because more than 21 days have passed since Plaintiff was served with Defendant
Charles C. McCloskey’s motion to dismiss under Rule 12(b)(6) (ECF No. 6), and the
record does not indicate Defendants’ written consent to amendment, Plaintiff needs the
Court’s leave to amend his complaint. Accordingly, the Court will treat the amended
complaint as a “proposed” amended complaint and will ask Plaintiff to file a properly
supported motion for leave to amend his complaint. Plaintiff’s motion for leave must set
forth the nature of the amendment, including any change in parties, legal claims, or factual
allegations, and must explain the reasons therefore.1
Moreover, Plaintiff’s request for the Court’s assistance in issuing subpoenas is
premature, as the Court has not yet scheduled initial case management conference under
Federal Rule of Civil Procedure 16, and the parties have not yet met and conferred
regarding a plan and schedule for discovery.2 See Fed. R. Civ. P. 26(d)(1).
Accordingly,

1

Plaintiff filed a “motion for leave to file an amended complaint” (ECF No. 18) on
January 4, 2018 that merely contained the motion’s title with no explanation of the
amendment sought or argument as to why amendment was appropriate. The Court will
deny this motion but will permit Plaintiff to file a properly supported motion as set forth
above.
2

After the Court holds a Rule 16 case management conference, if appropriate, and
sets a schedule for discovery, Plaintiff may submit discovery requests to any other party in
this case in accordance with the Federal Rules of Civil Procedure, without the need for a
subpoena. To the extent Plaintiff seeks discovery from non-parties, in accordance with
Local Rule 45-2.06(C)(1), the Court may require Plaintiff to file a written request for the
issuance of any subpoena, setting forth the name and address of each witness for whom a
subpoena is sought, along with a brief summary of the witness’s anticipated testimony, or
if the subpoena is for documents, a brief summary of the specific documents sought. In
making such a request, Plaintiff must note the requirements of Federal Rule of Civil
Procedure 45, including the geographical limits of Rule 45(c).
2

IT IS HEREBY ORDERED that Plaintiff’s “Motion for Leave to File Amended
Complaint” is DENIED. ECF No. 18. On or before January 18, 2018, Plaintiff shall
file a properly supported motion for leave to amend his complaint, setting forth the nature
of the amendment, including any change in parties, legal claims, or factual allegations, and
explaining the reasons therefore. Failure to comply with this Order will result in the Court
striking the Proposed Amended Complaint (ECF No. 17).
IT IS FURTHER ORDERED that Plaintiff’s pro se motion for subpoenas is
DENIED. ECF No. 16.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of January, 2018

3