DILEO v. MABUS et al

Filing 21

MEMORANDUM ORDER. Plaintiff's second amended complaint (d.e. 15 ) is stricken from the record; that Plaintiff shall file a sur-reply to Defendants' reply by 6/10/2015; Defendants may file a sur-sur-reply to any sur-reply filed by Plaintiff by 6/17/2015. Signed by Judge Michael A. Shipp on 5/29/2015. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHERYL DILEO,
Plaintiff,
Civil Action No. 14-4246 (MAS) (DEA)

v.
l\1EMORANDUM ORDER
RAY MABUS, et al.,
Defendants.

This matter comes before the Court on Defendants Ray Mabus ("Mabus") and Travis
Davis' ("Davis") motion to dismiss Plaintiff Cheryl Dileo' s ("Dileo") complaint. Plaintiff filed
two amended complaints and opposed the motion, and Defendants replied.
Rule 15(a) of the Federal Rules of Civil Procedure states: "A party may amend its
pleading once as a matter of course." Fed. R. Civ. P. 15(a). Rule 15(a)(2) further states that, "[i]n
all other cases, a party may amend its pleading only with the opposing party's written consent or
the court's leave." Fed. R. Civ. P. 15(a)(2). In this case, Plaintiff filed the amended complaint,
which she was entitled to do without the Court's leave, but then filed a second amended
complaint, without leave or consent. Accordingly, the second amended complaint is stricken and
the first amended complaint is accepted as the operative pleading.
Defendants' reply brief in support of its motion to dismiss introduced new arguments in
support of the motion. While sur-replies are normally not permitted, see L. Civ. R. 7.l(d)(6),
because Defendants have reconstructed their reply to respond to Plaintiff's amended complaint,
the Court will allow Plaintiff the opportunity to respond to those arguments in the context of the
amended complaint. Therefore, Plaintiff may file a sur-reply. Defendants may then file a sur-sur-

reply in support of their motion to dismiss.
For the above reasons, and other good cause shown,

c.-lft

IT IS on thisYf day of May 2015, ORDERED that:
1.

Plaintiffs second amended complaint (ECF No. 15) is stricken from the record;

2.

Plaintiff shall file a sur-reply to Defendants' reply by June

I l: 2015; failure to

file a sur-reply will result in Defendants' argument being treated as unopposed;
and
3.

Defendants may file a sur-sur-reply to any sur-reply filed by Plaintiff by
June 1

1, 2015.

SuulP

MICHAEL A.
UNITED STATES DISTRICT JUDGE

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