Governale v. Doe et al

Filing 28

SHORT FORM ORDER: The Court finds that the purported amended complaint is a nullity, without legal effect, and will be stricken (Please see Order for Further Details). Further, the Court finds that the purported amended summons was issued in error ba sed upon the invalid amended complaint. Accordingly, it, too, is stricken. The Court directs that, unless otherwise agreed to by the parties, the previously established briefing schedule will remain in force and is not tolled by the Plaintiffs filing. It is So Ordered by Judge Arthur D. Spatt on 6/20/2016. (Ortiz, Grisel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STEVEN GOVERNALE,
Plaintiff,
-againstERIC SOLER, #5664; JAMES S. ADLER, #5579; GARY OSSO, #3997,
individually and as police personnel of the Suffolk County, N.Y.
Police Dept., COUNTY OF SUFFOLK, N.Y. and JOSEPH TRAPASSO,

FILED 
CLERK 

6/20/2016 3:24 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

SHORT FORM ORDER
14-CV-4386 (ADS)(ARL)

Defendants.
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APEARANCES:
Arthur V. Graseck, Jr., Esq.
Attorney for the Plaintiff
99 Meredith Lane
Oakdale, NY 11769
Suffolk County Attorney’s Office
Attorneys for the Defendants Eric Soler, James S. Adler, Gary Osso, and County of Suffolk
100 Veterans Memorial Highway, PO Box 6100
Hauppauge, NY 11788
By:
Brian C. Mitchell, Assistant County Attorney
SPATT, District Judge:
On July 21, 2014, the Plaintiff Steven Governale (“Governale” or the “Plaintiff”) commenced
this civil rights action under 42 U.S.C. § 1983 against the County of Suffolk (the “County”), and
several individual members of the County Police Department, namely, Officers Eric Soler (“Soler”),
James S. Adler (“Adler”), and Gary Osso (“Osso,” together with the County, Soler, and Adler, the
“County Defendants”), and one Joseph Trapasso (“Trapasso”), a civilian.
On September 3, 2014, the County Defendants, by counsel, filed an answer to the complaint.
Therefore, under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 15, the time for the Plaintiff to
amend the complaint as a matter of right expired some 21 months ago, on September 24, 2014. See
Fed. R. Civ. P. 15(a)(1) (authorizing a party to amend its pleading once as matter of right within 21
days after serving it or 21 days after service of the answer).

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On March 12, 2016, after a lengthy period of inactivity in this case, the Court set a deadline
of April 14, 2016 for any party to request a pre-motion conference in advance of seeking summary
judgment.
On April 27, 2016, upon request by the County Defendants, the Court held a pre-motion
conference, at which time a briefing schedule for the County Defendants’ anticipated summary
judgment motion was established.
On June 8, 2016, pursuant to the Court-ordered briefing schedule, the County Defendants
filed their motion for summary judgment. Consequently, the Plaintiff’s response is currently due on
or before July 11, 2016.
However, on June 15, 2016, the Plaintiff filed a purported amended summons and
complaint, apparently without receiving the County Defendants’ written consent, and without first
seeking leave of the Court. As noted above, this purported amended pleading is procedurally
improper inasmuch as it was not authorized by Fed. R. Civ. P. 15.
Accordingly, on its own motion, the Court finds that the purported amended complaint is a
nullity, without legal effect, and will be stricken. See Chevron Corp. v. Salazar, No. 11-cv-0691, 2011
U.S. Dist. LEXIS 92091, at *9-*10 (S.D.N.Y. Aug. 17, 2011) (striking purported amended pleading
which was filed without leave of court and did not otherwise satisfy Rule 15); Lyddy v. Bridgeport
Bd. of Educ., No. 06-cv-1420, 2008 U.S. Dist. LEXIS 45035, at *6-*7 (D. Conn. June 10, 2008) (noting
that an amended complaint which is filed without obtaining the required leave of court “is generally
considered a nullity and without legal effect” (citing 6 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 1484, at 601 (1990)); In re Crazy Eddie Sec. Litig., 792
F. Supp. 197, 204 (E.D.N.Y. 1992) (same); Gaumont v. Warner Bros. Pictures, 2 F.R.D. 45, 46 (S.D.N.Y.
1941) (same); Moore’s Federal Rules Pamphlet § 15.3 (noting that “if leave of court to amend is
required, an amended pleading filed without obtaining leave is a nullity and the original pleading
stands” (citations omitted)).
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Further, the Court finds that the purported amended summons was issued in error based
upon the invalid amended complaint. Accordingly, it, too, is stricken.
The Court directs that, unless otherwise agreed to by the parties, the previously established
briefing schedule will remain in force and is not tolled by the Plaintiff’s filing.
It is SO ORDERED.
Dated:

Central Islip, New York
June 20, 2016

/s/ Arthur D. Spatt_____________________________________
ARTHUR D. SPATT
United States District Judge

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