Partee v. Eldercare Management Services

Filing 36

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs motion for leave to file a second amended complaint is GRANTED. ECF No. 23 . The Clerk of Court shall file ECF No. 26 as Plaintiffs Second Amended Complaint. IT IS FURTHER ORDERED that Defendants motion to dismiss is DENIED as moot. ECF No. 21 . However, Defendant may, no later than 14 days from the date of this Memorandum and Order, refile its motion to dismiss or file a new such motion addressed to the second amended complaint . Plaintiff shall have seven days to file any opposition to such a motion to dismiss, and Defendant shall have seven days thereafter to file any reply. IT IS FURTHER ORDERED that no further leave to amend will be granted to Plaintiff absent good cause shown. Signed by District Judge Audrey G. Fleissig on 06/25/2018. (KCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDWARD PARTEE, JR.,
Plaintiff,
v.
ELDERCARE MANAGEMENT
SERVICES,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:17-cv-02827-AGF

MEMORANDUM AND ORDER
This pro se action claiming disability discrimination and retaliation is before the Court
Plaintiff’s motion (ECF No. 23) for leave to file a second amended complaint. Plaintiff has
already amended his complaint once as a matter of course under Federal Rule of Civil
Procedure 15(a)(1), and in light of this amendment, the Court denied as moot Defendant’s
motion to dismiss the original complaint. Defendant then filed a new motion to dismiss with
respect to the amended complaint, and rather than responding to the motion, Plaintiff filed the
current motion for leave to amend his complaint. The Case Management Order’s deadline for
seeking leave to amend the pleadings has not yet expired.
The proposed second amended complaint asserts the same causes of action as the
previously-filed complaint, but separates these claims into counts, and also increases the
amount of damages claimed based on Plaintiff’s review of the evidence and of the results in
similar cases. Plaintiff also contends that his proposed second amended complaint “amplifies”
his allegations in support of Defendant’s vicarious liability for the discriminatory and
retaliatory actions of its agent, Plaintiff’s supervisor.

Defendant opposes the motion, arguing that the proposed amendment is futile and
would merely result in the filing of a new motion to dismiss, asserting the same arguments for
dismissal which Defendant has previously asserted.
In light of the liberal amendment standard under Rule 15(a)(2), as well as Plaintiff’s
attempt to allege his claims with more specificity, the Court will grant Plaintiff’s motion to
amend. The Court will allow Defendant to refile its motion to dismiss within 14 days, and will
order Plaintiff to respond to that motion within seven days thereafter. No further leave to
amend will be granted by the Court absent good cause shown.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file a second amended
complaint is GRANTED. ECF No. 23. The Clerk of Court shall file ECF No. 26 as Plaintiff’s
Second Amended Complaint.
IT IS FURTHER ORDERED that Defendant’s motion to dismiss is DENIED as
moot. ECF No. 21. However, Defendant may, no later than 14 days from the date of this
Memorandum and Order, refile its motion to dismiss or file a new such motion addressed to the
second amended complaint. Plaintiff shall have seven days to file any opposition to such a
motion to dismiss, and Defendant shall have seven days thereafter to file any reply.
IT IS FURTHER ORDERED that no further leave to amend will be granted to
Plaintiff absent good cause shown.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 25th day of June, 2018. 

2