Williams v. Dakota County Board of Commissioners et al

Filing 34

MEMORANDUM AND ORDER denying 6 Motion to Dismiss; denying as moot 9 Motion to Extend ; overruling 13 Order on Appeal to Magistrate Judge Order; denying as moot 21 Motion to Strike ; denying as moot 28 Motion to Strike ; Defendants shall have twenty days from the date of this order to respond to plaintiff's amended complaint. Ordered by Chief Judge Joseph F. Bataillon. (ADB, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHARVETTE WILLIAMS, ) ) Plaintiff, ) ) v. ) ) DAKOTA COUNTY BOARD OF ) COMMISSIONERS, DAKOTA COUNTY ) DEPARTMENT OF CORRECTIONS, ) RODNEY HERRON, in his official ) capacity and personally, COUNTY OF ) DAKOTA, NEBRASKA, and JAMES L. ) W AGNER, Dakota County Sheriff in his ) official capacity and personally, ) ) Defendants. ) )

8:09CV201

MEMORANDUM AND ORDER

This matter is before the court on defendants' motion to dismiss, Filing No. 6; motion for extension of time, Filing No. 9; appeal from the magistrate's order, Filing No. 13; motion to strike amended complaint, Filing No. 21; and motion to strike response, Filing No. 28. Plaintiff brings this action alleging violations of Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983, against the defendants on the basis of race and gender and for retaliation. Defendants filed their motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (1), (2), (4), (5) and (6). Thereafter, the plaintiff filed her motion requesting permission to file an amended complaint to cure the deficiencies alleged in the motion to dismiss. The magistrate judge granted the motion to amend, Filing No. 12, in a text order entry. The defendants then appealed the magistrate judge's order, arguing that plaintiff should not be permitted to file an amended complaint. Defendants contend that the magistrate judge should not have determined that plaintiffs have a "right" to amend their complaint pursuant to Fed. R. Civ. P. 15(a), since the plaintiff sought leave to do so. Had

the plaintiff simply filed the amended complaint and not asked for leave, the defendants agree that plaintiff would have been permitted to file the amended complaint. Pursuant to 28 U.S.C. § 636, the court has carefully reviewed the magistrate judge's text order and decision and finds it to be correct. The court finds the plaintiff is entitled to amend her complaint whether through the automatic process of Fed. R. Civ. P. 15(a) or through leave of court. This court would have granted plaintiff's motion in any event pursuant to Fed. R. Civ. P. 15(2). Accordingly, the court finds the motion to dismiss shall be denied and the appeal from the magistrate judge's order overruled. THEREFORE, IT IS ORDERED: 1. Defendants' motion to dismiss, Filing No. 6, is denied. 2. The appeal from the magistrate judge's order, Filing No. 13, is overruled. 3. Plaintiff's motion for an extension of time, Filing No. 9, is denied as moot. 4. Defendants' motion to strike the amended complaint, Filing No. 21, is denied as moot. 5. Defendants' motion to strike the response, Filing No. 28, is denied as moot. 6. Defendants shall have twenty days from the date of this order to respond to plaintiff's amended complaint. DATED this 4th day of November, 2009. BY THE COURT:

s/ Joseph F. Bataillon Chief United States District Judge *This opinion m a y contain hyperlinks to other docum e n ts or W e b sites. The U.S. District Court for th e District of Nebraska does not endorse, recom m e n d , approve, or guarantee any third parties or the services o r products they provide on their W e b sites. Likewise, the court has no agreem e n ts with any of these third p a r tie s or their W e b sites. The court accepts no responsibility for the availability or functionality of any h yp e r lin k . Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect t h e opinion of the court. 2