Harrington et al v. Seward County Commisioners et al

Filing 50

MEMORANDUM AND ORDER that the plaintiffs' motion to amend and consolidate 29 is denied. The operative complaint in this case is filing 33 . The stay of this case is lifted. The defendants may respond to the plaintiffs' amended complaint, pursuant to Fed. R. Civ. P. 12, on or before April 20, 2016. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANE HARRINGTON, et al.,
Plaintiffs,

4:15-CV-3068

vs.
MEMORANDUM AND ORDER
SEWARD COUNTY, NEBRASKA, et
al.,
Defendants.
The plaintiffs have moved to amend their complaint and consolidate
this matter with the plaintiff Shane Harrington's lawsuit against Hall
County, Nebraska (4:15-cv-3052). Filing 29. Harrington filed a nearly
identical motion in that case, which this Court has already denied. See case
no. 4:15-cv-3052 filing 132. For the same reasons, the Court will deny this
motion.
Next, after filing the motion to amend and consolidate, the plaintiffs
filed an additional amended complaint (filing 33), which does not include the
allegations from the Hall County case. The Court concludes that the
plaintiffs' latest amended complaint is the operative complaint in this case.
Fed. R. Civ. P. 15(a)(1) permits a plaintiff to "amend its pleading once
as a matter of course" either 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." By its terms, this rule applies to the plaintiffs'
amended complaint. The first responsive pleading or Rule 12 motion in this
case was the defendant JEO Consulting Group, Inc.'s motion to dismiss
(filing 26) under Rule 12(b)(6), filed on July 31, 2015. The plaintiffs filed their
amended complaint on August 19, 2015—19 days later. And although the
plaintiffs previously moved to amend the complaint, that motion was
intertwined with the motion to consolidate, and the plaintiffs were not
permitted to make the amendment. Thus, this is the only time they will have
been permitted to amend as a matter of course.
Accordingly, the plaintiffs' amended complaint (filing 33) was filed as of
right and did not require leave of the Court. Also pending before the Court is
defendant JEO Consulting Group's motion to dismiss (filing 26). Having
reviewed the motion to dismiss, the Court will deny it as moot in light of the
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plaintiffs' amended complaint. JEO is free to raise any arguments it believes
continue to apply to the amended complaint in a new motion to dismiss. And
the parties may wish to consider the Court's order in the Hall County case
(case no. 4:15-cv-3052 filing 132) and evaluate the relevance of the Court's
reasoning in that order to the issues presented in this case.
The Magistrate Judge previously stayed this case pending the Court's
resolution of the motions to amend and dismiss, and to permit the Court to
proceed in the Hall County matter. See filings 48 and 49. Accordingly, that
stay will now be lifted. The defendants may file and serve appropriate
responsive pleadings or motions pursuant to Fed. R. Civ. P. 12, absent an
extension for good cause shown, on or before April 20, 2016.
IT IS ORDERED:
1.

The plaintiffs' motion to amend and consolidate (filing 29)
is denied.

2.

The operative complaint in this case is filing 33.

3.

The stay of this case is lifted.

4.

The defendants may respond to the plaintiffs' amended
complaint, pursuant to Fed. R. Civ. P. 12, on or before April
20, 2016.

Dated this 31st day of March, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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