RICALE ASSOCIATES, LLC. v. MCGREGOR et al
MEMORANDUM ORDER that Plaintiff has until 3/23/2015 to file opposition to pending motions and Moving Defendants must reply to any filed opposition by 3/30/2015. Signed by Judge Michael A. Shipp on 3/12/2015. (kas, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICALE ASSOCIATES, LLC,
Civil Action No. 15-541 (MAS) (TJB)
LEON MCGREGOR, et al.,
This matter comes before the Court on the request of Plaintiff Ricale Associates, LLC, for
an extension to respond to Defendants Chase Motorsports, Inc., Dylan Thompson (collectively,
"Chase Defendants") and Auto-Owners Insurance Co.'s ("AOI") (collectively with Chase
Defendants, "Moving Defendants") separate motions to dismiss. Plaintiffs request (ECF Nos. 13,
14) is made in response to Chase Defendants' supplemental letter brief (ECF No. 12), 1 which
asserts that Plaintiffs Amended Complaint (ECF No. 8) was improperly filed in violation of
Federal Rule of Civil Procedure 15 and that Plaintiff has failed to oppose the separate pending
motions to dismiss. Plaintiffs request, in response, asserts that Moving Defendants' motions are
mooted by the Amended Complaint and that Moving Defendants' failure to answer or otherwise
move in response to the Amended Complaint puts them in default. This Order is entered in order
to clarify the procedural posture of the case.
Plaintiffs letter brief is offered as a supplement to its motion to dismiss. In other words, the
submission is offered as a sur-reply, which is not "permitted without permission of the Judge or
Magistrate Judge to whom the case is assigned." L. Civ. R. 7.l(d)(6). To the extent Plaintiffs
letter brief addresses arguments in support of its motion and are unrelated to the propriety of the
Amended Complaint, the Court disregards the submission as improper.
Chase Defendants assert that Plaintiffs Amended Complaint was improperly filed without
leave of Court. Because Plaintiff previously filed an amended complaint in state court prior to
removal, Chase Defendants argue, Plaintiff could not properly file another amended complaint in
federal court as a matter of course and without leave of the Court under Rule 15(a)(l)(B).
Chase Defendants are incorrect. The Federal Rules of Civil Procedure "apply to a civil
action after it is removed from a state court." Fed. R. Civ. P. 81(c). Accordingly, whatever
amendments were made in state court are not considered when determining whether Rule 15(a) is
applicable. At least one other court in this district has come to the same conclusion. See Thomason
v. Norman E. Lehrer, P.C., 182 F.R.D. 121, 128 n.2 (D.N.J. 1998). As a result, Plaintiffs
Amended Complaint is proper, and Plaintiff need not have sought leave prior to its filing.
Plaintiff asserts that, because its Amended Complaint was filed after Moving Defendants'
Rule 12 motions, Moving Defendants must move again (or file a responsive pleading), and that
their failure to do so puts them in default. Plaintiffs argument also suggests that it was not required
to oppose Moving Defendants' motions because those motions were rendered moot by the
Under the circumstances, the Court disagrees with Plaintiff. AOI expressly requested that
its motion be carried over to apply to the Amended Complaint, as the amendment did not affect
the claim asserted against it. (ECF No. 11.) In addition, the Chase Defendants' letter brief and
other correspondence indicate that many of the arguments made in their motion are still applicable
to the Amended Complaint.
(ECF Nos. 12, 15.) The Court construes Chase Defendants'
submissions as a request to reassert the motion as to the amended pleading insofar as the motion ,
is still applicable. Moreover, the Court has reviewed the motions to dismiss at issue and has
determined that many of the issues presented therein are still ripe for decision. Therefore, under
the specific circumstances presented here, the Court determines that the Moving Defendants'
motions to dismiss are applicable to the Amended Complaint and need not be refiled.
Based on the above determination, Plaintiffs failure to file opposition to the Moving
Defendants' motions leaves those motions unopposed. As a result, the Court will allow Plaintiff
an extension to file opposition.
For the above reasons,
IT IS, on this }fl_ day of March, 2015, ORDERED that:
1. Plaintiff has until March 23, 2015, to file opposition to the pending motions; and
2. Moving Defendants must reply to any filed opposition by March 30, 2015.
UNITED STATES DISTRICT JUDGE
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