MUSLIM v. HASSAN et al
MEMORANDUM ORDER denying 57 Motion to Dismiss; paragraphs 1,2,4,5 and 7-14 of Plaintiff's supplemental complaint be struck for failing to comply with Fed.R.Civ.P. 15(d); that the Clerk of the Court shall issue summons to be served by the US Marshal upon Defendant Carver. Signed by Judge Peter G. Sheridan on 5/12/2016. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 13-3484 (PGS)
MEMORANDUM AND ORDER
ABU AHSAN, et al.,
SHERIDAN, DISTRICT JUDGE
Plaintiff Alquan Muslim (“Plaintiff’), a prisoner currently confined at New Jersey State
Prison in Trenton, New Jersey, was granted leave to file a supplemental complaint on August 12,
2015. (ECF No. 50.) Plaintiff then filed an amended complaint with the Court on September 8,
2015. (ECF No. 52.) Now before the Court comes Defendant Lance Carver’s (“Defendant”)
Motion to Dismiss Plaintiffs amended complaint for failure to comply with FED.R.CIv.P. 15(a),
i.e., filing an amended complaint instead of the court-approved supplemental complaint. For the
reasons that follow, Defendant’s motion will be denied.
A District Court may permit a party to file a supplemental pleading “setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Fed.R.Civ.P. 15(d); see also Crosby v. Piazza, 465 F. App’x 168, 174 (3d Cir.
2012). A supplemental complaint “refers to events that occurred after the original pleading was
filed.” Cash v. Wetzel, 8 F. Supp. 3d 644, 65 1-52 (E.D. Pa. 2014).
After reviewing Defendants’ and Plaintiffs submissions, Defendant appears to be
arguing that Plaintiffs supplemental complaint, something he was granted leave to file, is
actually an amended complaint, something which he was not granted leave to file. Therefore, the
argument goes, Plaintiffs submission must be dismissed because it is an amended complaint
filed without either the opposing party’s permission or leave of Court pursuant to FED.R.CIv.P.
15(a). (See ECF No. 57-1 at 1-2.) Defendant seems to be referencing ¶ 1, 2, 4, 5 & 7-14 in
Plaintiffs submission, which are copied from Plaintiffs original complaint and re-numbered.
(See ECF No. 52
¶ 1, 2, 4, 5, 7-14.) However, because this is a supplemental complaint, it does
not supersede the original complaint, it merely complements it. See Bates v. Western Elec., 420
F.Supp. 521, 526 (E.D. Pa. June 28, 1976) (holding that supplemental pleadings “relate back” to
original pleadings under FED.R.CIv.P. 15(d)). Thus, the eleven offending paragraphs are already
part of the record
indeed, there is no allegation that Plaintiff is trying to add something wholly
new and not approved by the Court. Plaintiff merely seems to have copy/pasted part of his
original complaint at the beginning of his court-approved supplemental complaint, which, if
anything, offends FED.R.CIV.P. 15(d) by
limiting the supplemental complaint to events
occurring afler the date of the original complaint. See Turner v. New Jersey State Police, No. 085 163, 2015 WL 1850001, at *4 (D.N.J. Apr. 22, 2015) (striking supplemental complaint for,
among other things, “re-plead[ing] and re-number[ingj counts”). In all other regards, the
submission Plaintiff made is identical to the one approved by the Court to be Plaintiffs
supplemental complaint. Therefore,
IT IS on this
fl- day of
ORDERED that Defendant’s motion to dismiss Plaintiffs supplemental complaint for
failure to comply with FED.R.CIv.P. 15(a) is DENIED; and it is further
ORDERED that paragraphs 1, 2, 4, 5, and 7-14 of Plaintiffs supplemental complaint be
struck for failing to comply with FED.R.CIV.P. 15(d). leaving the remainder of the submission
intact: and it is further
ORDERED that the Clerk of the Court shall issue summons, and the United States Marshal
shall serve a copy of the Supplemental Complaint, Original Complaint,
upon Defendant Carver pursuant to 28 U.S.C.
and this Order
§ 1915(d), with all costs of service advanced by the
United States; and it is further
ORDERED that the Clerk of the Court shall serve this Order upon Plaintiff by regular U.S.
Peter G. Sheridan, U.S.D.J.
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