Theodore et al v. Linear Retail Salem #2, LLC
Filing
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ORDER granting 5 Motion to Reopen Case; granting 6 Motion for Leave to File Amended Complaint. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Dino N. Theodore and
Access with Success, Inc.
v.
Civil No. 13-cv-162-JD
TMT Salem Park Plaza, Inc.
O R D E R
Dino N. Theodore and Access with Success, Inc. brought suit
against TMT Salem Park Plaza, Inc., as the owner of a shopping
center known as Salem Park Plaza, seeking injunctive relief for
violations of Title III of the Americans with Disabilities Act.
When the plaintiffs’ counsel discovered that TMT sold Salem Park
Plaza in January of this year before the plaintiffs’ complaint
was filed in April, counsel intended to amend the complaint to
name the new owner, Linear Retail Salem #2, LLC, as the defendant
and to dismiss the claims against TMT.
Counsel filed the notice
of voluntary dismissal first, however, which resulted in the case
being closed.
The plaintiffs now move to reopen the case,
pursuant to Federal Rule of Civil Procedure 60(b)(1) and for
leave to file an amended complaint to name the proper defendant.
I.
Motion to Reopen
Rule 60(b)(1) allows the court to “relieve a party or its
legal representative from a final judgment, order, or proceeding
for . . . mistake, inadvertence, surprise, or excusable neglect.”
When the judgment was entered due to a party’s or his legal
representative’s deliberate decision, no mistake occurred and
relief under Rule 60(b)(1) is not available.
Ungar v. Palestine
Liberation Org., 599 F.3d 79, 85 (1st Cir. 2010).
Therefore, the
reason for the error is critical to determining whether relief is
available under Rule 60(b)(1).
Developer Inv. Corp. v. Chicago
Title Ins. Co., 2012 WL 1432545, at *2-*3 (D.N.H. Apr. 25, 2012).
In the motion to reopen the case, which is supported by the
plaintiffs’ counsel’s affidavit, counsel explains that he
intended to file a notice of amended complaint, the amended
complaint naming the proper defendant, and then the notice of
voluntary dismissal of the claims against TMT.
By mistake,
counsel filed the notice of voluntary dismissal first with the
inadvertent consequence of terminating the entire case.
Counsel
asks that he be permitted to correct his mistake by reopening the
case.
Under the circumstances presented, the case was closed based
on counsel’s mistake.
Therefore, relief under Rule 60(b)(1) is
appropriate.
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II.
Motion to Amend
Federal Rule of Civil Procedure 15(a)(1) provides that a
“party may amend its pleading once as a matter of course within
21 days after serving it, or . . . 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.”
“In all other
cases, a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.”
15(a)(2).
requires.”
Fed. R. Civ. P.
Leave should be freely given “when justice so
Id.
The plaintiffs seek leave to file an amended complaint
to name the proper defendant, Linear Retail Salem #2, LLC.
The
plaintiffs’ counsel represents that he discovered that Linear
Retail is the owner of Salem Park Plaza based on the deed
recorded on January 15, 2013.
Neither defendant has been served.
Although leave may not be required to file the amended
complaint at this juncture, the unusual circumstances presented
here make a motion for leave a prudent procedure.
Justice
requires allowing the amended complaint to name the proper
defendant.
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Conclusion
For the foregoing reasons, the plaintiffs’ motion to reopen
the case (document no. 5) is granted.
The case is reopened.
The plaintiff’s motion for leave to file an amended
complaint (document no. 6) is granted.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 15, 2013
cc:
Nicholas S. Guerrera, Esquire
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