Isaacs v. Trustees of Dartmouth College
ORDER denying as moot but without prejudice 7 the Board's Motion to Dismiss; denying as moot but without prejudice 13 the Trustees' Motion to Dismiss for Failure to State a Claim; and denying as moot 14 Plaintiff's Motion to Amend. So Ordered by Judge Landya B. McCafferty.(lat)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dr. Jeffrey Isaacs
Case No. 17-cv-40-LM
Opinion No. 2017 DNH 132
Trustees of Dartmouth
College, NH Board of
Medicine, and Dartmouth
Hitchcock Medical Center
O R D E R
Dr. Jeffrey Isaacs is a former resident in psychiatry in
the Graduate Medical Education program at Dartmouth Hitchcock
Medical Center (“DHMC”).
Asserting claims that arise from a
disciplinary action taken against him by the New Hampshire Board
of Medicine (“Board”), Dr. Isaacs is suing the Board, DHMC, and
the Trustees of Dartmouth College (“Trustees”).
After the Board
and the Trustees each filed a motion to dismiss, plaintiff filed
a pleading captioned “Motion to Amend Complaint as a Matter of
Course,” to which he attached his first amended complaint
That motion is currently before the court.
and the Trustees object; DHMC does not.
For the reasons that
follow, plaintiff’s FAC was properly filed pursuant to Rule
15(a)(1)(B) of the Federal Rules of Civil Procedure (“Federal
As a consequence, the FAC is the operative complaint
in this case, but, for reasons explained more fully below,
plaintiff’s motion to amend is denied as moot.
In his motion, plaintiff relies upon both Rule 15(a)(1),
which governs amendment as of right, and Rule 15(a)(2), which
governs permissive amendment.
More specifically, he asserts
that he is entitled to amend his complaint without leave of the
court, under Rule 15(a)(1), but he also asserts in the
alternative, and out of an abundance of caution, that even if
Rule 15(a)(1) does not apply, the court should grant him leave
to amend his complaint under the standard set out in Rule
Because plaintiff’s FAC was properly filed pursuant
to Rule 15(a)(1), the court need not reach his argument that he
would be entitled to permissive amendment under Rule 15(a)(2).
With regard to amendment as of right, which requires no
motion, the Federal Rules provide as follows:
A party may amend its pleading once as a matter of
(A) 21 days after serving it, or
(B) 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.
Fed. R. Civ. P. 15(a)(1).
Where, as here, “a plaintiff seeks to
amend his or her complaint against multiple defendants, each
defendant is treated separately under Rule 15 for purposes of
amending as of right.”
Cowan v. Miller, No. 2:15-cv-12428, 2016
WL 4362868, at *2 (E.D. Mich. Aug. 16, 2016) (citing Dewald v.
Clinton, No. 05-71492, 2010 WL 778057, at *1 (E.D. Mich. Mar. 4,
2010); Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th
Cir. 2007); Scott-Blanton v. Universal City Studios Prods.,
LLLP, 244 F.R.D. 67, 69 (D.D.C. 2007)); see also Culver v.
Lithia Motors, Inc., Civ. No. 15-669 MCA/SCY, 2016 WL 7426587,
at *7 (D.N.M. May 12, 2016).
In the discussion that follows,
the court treats each defendant separately.
The NH Board of Medicine
In his original eight-count complaint, plaintiff asserted
five claims against the Board.
On March 22, the Board filed a
motion to dismiss: (1) all five of plaintiff’s claims under
Rules 12(b)(1) and 12(b)(6); and (2) four of the five claims on
grounds that they are barred by the Eleventh Amendment.
the deadline for objecting to the Board’s motion, see LR 7.1(b),
plaintiff filed a motion, assented to by the Board, asking the
court to extend the deadline for responding to the Board’s
motion to dismiss until May 1.
The court granted plaintiff’s
On May 1, he filed both an objection to the Board’s
motion to dismiss and the motion to amend that is currently
before the court.
Plaintiff asserts that he is entitled to amend his
complaint as a matter of course under Rule 15(a)(1).
disagrees, arguing that under Rule 15(a)(1)(B), the window for
such an amendment closed on April 12, 21 days after the Board
served its motion to dismiss.
While a strict reading of Rule
15(a)(1)(B) might support the Board’s position, that position
fails to account for the Board’s own assent to plaintiff’s
motion to extend the deadline for responding to the motion to
If plaintiff’s objection to the Board’s motion to
dismiss was timely filed, and the Board makes no argument to the
contrary, it would defy common sense for the court to rule that
plaintiff’s contemporaneously filed FAC, which is also a
response to the motion to dismiss, was untimely.
Thus, as to
the Board, plaintiff’s FAC was properly filed under Rule
Because the FAC is now the operative complaint against the
Board, the Board’s pending motion to dismiss the original
complaint is moot.
That said, the court notes that in the
Board’s objection to plaintiff’s motion to amend, it responds to
plaintiff’s assertion that even if Rule 15(a)(1) does not apply,
he should be granted leave to amend his complaint under Rule
In so doing, the Board argues that plaintiff’s
proposed amendment would be futile, and incorporates by
reference the arguments it advanced in its motion to dismiss the
Because futility is assessed under the same
standard that applies to motions to dismiss filed under Rule
12(b)(6), see Privitera v. Curran (In re Curran), 855 F.3d 19,
28 (1st Cir. 2017), it appears that the Board’s objection to
plaintiff’s motion to amend, in conjunction with its previously
filed motion to dismiss, would provide the court with everything
necessary to determine whether plaintiff’s FAC states a claim
upon which relief can be granted.
motion to dismiss the FAC.
The only thing lacking is a
Given the state of the record, and
in the interest of economy, the Board may, if it chooses to do
so, file a motion to dismiss the FAC that simply incorporates,
by reference, the arguments it made in its first motion to
dismiss and its objection to plaintiff’s motion to amend.
The Trustees of Dartmouth College
In his original complaint, plaintiff asserted six claims
against the Trustees.
On April 17, the Trustees moved to
dismiss, arguing that: (1) plaintiff’s claims are barred by res
judicata; (2) those claims are untimely; and (3) they are not a
state actor subject to suit through 42 U.S.C. § 1983.
filed his motion to amend and his FAC on May 1, which is less
than 21 days after the Trustees served their motion to dismiss.
The Trustees argue that “[a]s the New Hampshire Board of
Medicine has correctly pointed out, Dr. Isaacs’ time to amend
his Complaint as of right expired 21 days after that Defendant’s
March 22, 2017 Rule 12(b)(6) motion was filed.”
Opposition to Mot. to Amend (doc. no. 20) 7.
however, ignores the rule that “each defendant is treated
separately under Rule 15 for purposes of amending as of right.”
Cowan, 2016 WL 4362868, at *2.
Based upon Cowan, plaintiff had
21 days from April 17 to amend his complaint as a matter of
course with respect to the Trustees.
Because plaintiff filed
his FAC less than 21 days after April 17, he satisfied Rule
15(a)(1)(B) as to the Trustees.
That makes the FAC the
operative complaint against the Trustees, and because the FAC is
the operative complaint, the Trustees’ motion to dismiss the
original complaint is moot.
The Trustees also argue that by filing a motion to amend,
rather than filing his FAC without a motion, plaintiff waived
his right to amend his complaint as a matter of course.
that proposition, they rely upon Coventry First, LLC v. McCarty,
605 F.3d 865 (11th Cir. 2010) (per curiam).
In that case, the
plaintiff “could have amended its complaint as a matter of
course [but] [i]nstead, it filed an unnecessary motion to amend,
with the proposed amendments attached.”
Id. at 869.
court denied the motion to amend, and the question before the
court of appeals was “whether, under Rule 15(a) of the Federal
Rules of Civil Procedure, the District Court had the discretion
to deny the motion to amend as futile, given that Coventry could
have filed an amended complaint as a matter of course.”
The court of appeals held that the District Court did not
err by reaching the question of futility, explaining that by
filing a motion to amend, the plaintiff had “waived the right to
amend as a matter of course and . . . invited the District Court
to review its proposed amendments.”
Coventry, 605 F.3d at 870.
According to the appellate court, after the plaintiff “invited
the District Court to review its proposed amendments,” id., it
could not “complain that the District Court accepted [its]
Even if the rule from Coventry were the law of this
circuit, and the Trustees acknowledge both that the Coventry
rule has not been universally accepted and that it has not been
considered by the First Circuit, this case is materially
distinguishable from Coventry.
While Dr. Isaacs did invite the
court to review his FAC, he did so in the alternative, and only
after asserting that he was entitled to amend his complaint as a
matter of course, under Rule 15(a)(1).
Indeed, even in light of
Coventry, the court can see no basis for construing a pleading
captioned “Motion to Amend Complaint as a Matter of Course” as a
waiver of plaintiff’s right to amend his complaint as a matter
In short, even if the Coventry rule were the law of
this circuit, it would not be an impediment to recognizing
plaintiff’s FAC as having been properly filed, as a matter of
course, pursuant to Rule 15(a)(1).
Finally, the Trustees have responded to plaintiff’s
alternative assertion that he would be entitled to amend his
complaint under Rule 15(a)(2).
They argue that amendment would
be futile because the FAC fails to state a claim upon which
relief can be granted.
As with the Board, the Trustees may, if
they chose to do so, file a motion to dismiss the FAC that
simply incorporates, by reference, the arguments they have
already advanced in their first motion to dismiss and their
objection to plaintiff’s motion to amend.
Dartmouth Hitchcock Medical Center
In his original complaint, plaintiff asserted six claims
He filed his motion to amend and his FAC
approximately three weeks before DHMC was obligated to respond
to the original complaint.
DHMC does not challenge plaintiff’s
right to amend his complaint as a matter of course.
DHMC, the FAC is the operative complaint.
Thus, as to
Moreover, as DHMC’s
pending motion to dismiss was filed after plaintiff filed his
FAC, and expressly applies to the FAC, the court will rule on
DHMC’s motion to dismiss in due course.
For the reasons detailed above, plaintiff’s FAC is now the
operative complaint in this case as to all three defendants.
Because an amended complaint filed pursuant to Rule 15(a)(1)
requires no motion, plaintiff’s motion to amend, document no.
14, is denied as moot.
In addition, the Board’s motion to
dismiss, document no. 7, and the Trustees’ motion to dismiss,
document no. 13, are both denied as moot, but without prejudice
to each defendant filing a motion to dismiss that incorporates
by reference the relevant arguments they have made in filings
that are already a part of the record.
United States District Judge
July 6, 2017
John F. Skinner, III, Esq.
Keith A. Mathews, Esq.
Pierre A. Chabot, Esq.
Seth M. Zoracki, Esq.
William D. Pandolph, Esq.
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