Marroquin v. Walmart, Inc.
OPINION AND ORDER regarding #5 Motion for Leave to File Amended Pleading. (Signed by Judge Micaela Alvarez) Parties notified.(kanelson, 7)
Case 7:22-cv-00091 Document 9 Filed on 05/09/22 in TXSD Page 1 of 4
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
May 09, 2022
Nathan Ochsner, Clerk
§ CIVIL ACTION NO. 7:22-cv-00091
OPINION AND ORDER
The Court now considers Plaintiff’s “Motion for Leave to File Amended Pleading.”1
Plaintiff is admonished to follow Local Rules 10.1 and 38.1 and Federal Rule of Civil
Procedure 7(b)(2) in her motions. Defendant has not filed a response and the time for doing so has
passed, rendering Plaintiff’s motion unopposed by operation of this Court’s Local Rule.2 After
considering the motion, record, and relevant authorities, the Court GRANTS Plaintiff’s motion.
This is a personal injury case. Plaintiff alleges that she entered a Rio Grande City WalMart Supercenter in October 2021 and slipped on a faulty front entrance rug.3 Plaintiff commenced
this case in Texas state court in December 2021.4 Defendant removed the case to this Court in
March 2022.5 This Court held that it has jurisdiction and issued a Federal Rule of Civil
Procedure 16(b) scheduling order on May 3, 2022.6
Dkt. No. 5.
LR7.4 (“Failure to [timely] respond to a motion will be taken as a representation of no opposition.”).
Dkt. No. 1-2 at 2, ¶¶ 7–8.
Id. at 1. This Court previously relied on Defendant’s notice of removal’s attached state court docket sheet to state
that this case commenced in October 2021, Dkt. No. 7 at 1 & n.2, but that docket sheet is from a different case. See
Dkt. No. 1-1.
Dkt. No. 1.
Dkt. No. 7.
Case 7:22-cv-00091 Document 9 Filed on 05/09/22 in TXSD Page 2 of 4
Plaintiff filed her motion for leave to file an amended complaint on April 14th, 7 and the
motion ripened on May 5th.8 Plaintiff seeks the Court’s leave to amend her complaint. The Court
turns to the analysis.
a. Legal Standard
Federal Rule of Civil Procedure 15(a)(1) permits one pleading amendment as a matter of
course within twenty-one days after initially serving it or twenty-one days after service of a
responsive pleading or certain motions, whichever is earlier. Because Plaintiff served her
complaint and Defendant answered in December 2021,9 more than twenty-one days have passed
and Plaintiff “may amend [her] pleading only with the opposing party's written consent or the
court's leave.”10 Because Plaintiff lacks Defendant’s written consent,11 Plaintiff requires the
Court’s leave to amend her complaint.
Under Rule 15(a)(2), “[t]he court should freely give leave when justice so requires.”12
“[T]he language of this rule ‘evinces a bias in favor of granting leave to amend.’”13 “Leave to
amend is in no way automatic, but the district court must possess a ‘substantial reason’ to deny a
party's request for leave to amend.”14 To ascertain whether a substantial reason to deny a request
for leave to amend exists, courts in the Fifth Circuit examine five factors: “1) undue delay, 2) bad
faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue
Dkt. No. 5.
Dkt. Nos. 1-2 and 1-4.
FED. R. CIV. P. 15(a)(2).
See Dkt. No. 5 at 3.
FED. R. CIV. P. 15(a)(2).
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283
F.3d 282, 286 (5th Cir. 2002)).
Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones v.
Robinson Prop. Grp., 427 F.3d 987, 993 (5th Cir. 2005)).
Case 7:22-cv-00091 Document 9 Filed on 05/09/22 in TXSD Page 3 of 4
prejudice to the opposing party, and 5) futility of the amendment.”15 A plaintiff’s failure to avail
of earlier opportunities to amend favors denial of leave to amend.16 The rules governing pleading
amendment also “do not require that courts indulge in futile gestures,”17 so the Court need not
grant leave to file a proposed amendment that is futile because it would fail to survive a Federal
Rule of Civil Procedure 12(b)(6) motion to dismiss.18 Absent any of these factors, however, leave
to amend should be freely given.19 Ultimately, “[w]hether leave to amend should be granted is
entrusted to the sound discretion of the district court.”20
Plaintiff only briefly argues that the Court should permit her leave to amend because “the
amended pleading will clarify Plaintiff’s demand for damages and the procedural rules under
which this case is brought.”21 The proposed amendment is therefore more technical than
substantive, as it does not substantively modify Plaintiff’s factual allegations or cause of action.22
Plaintiff’s motion for leave to amend also comes very early in this case, before the Court issued
its discovery schedule,23 and before the parties accomplished any discovery at all.24 Again,
Defendant does not oppose Plaintiff’s leave to amend.25
Smith, 393 F.3d at 595.
Quintanilla v. Tex. Television Inc., 139 F.3d 494, 499 (5th Cir. 1998) (citing Topalian v. Ehrman, 954 F.2d 1125,
1139 (5th Cir. 1992)); accord Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (quoting Carson v.
Polley, 689 F.2d 562, 584 (5th Cir. 1982)) (“A litigant's failure to assert a claim as soon as he could have is properly
a factor to be considered in deciding whether to grant leave to amend. Merely because a claim was not presented as
promptly as possible, however, does not vest the district court with authority to punish the litigant.”).
United States ex rel. Jackson v. Univ. of N. Tex., 673 F. App’x 384, 388 (per curiam) (quoting DeLoach v.
Woodley, 405 F.2d 496, 497 (5th Cir. 1968) (per curiam)).
Marucci Sports, 751 F.3d at 378.
Foman v. Davis, 371 U.S. 178, 182 (1962).
Quintanilla, 139 F.3d at 499 (quotation omitted); see SMH Enters. v. Krispy Krunchy Foods, L.L.C., No. CV 202970, 2022 WL 497527, at *3–4 (E.D. La. Feb. 2, 2022).
Dkt. No. 5 at 2, ¶ 3.
Compare Dkt. No. 1-2 at 2–3, ¶¶ 7–16, with Dkt. No. 5-1 at 2–3, ¶¶ 5–14.
Compare Dkt. No. 5, with Dkt. No. 7.
See Dkt. No. 6 at 3, ¶¶ 9–10.
See supra note 2 and accompanying text.
Case 7:22-cv-00091 Document 9 Filed on 05/09/22 in TXSD Page 4 of 4
Accordingly, none of the warning factors weigh against permitting amendment. There is
no apparent undue delay or dilatory motive; this is Plaintiff’s first amendment and Plaintiff has not
previously failed to cure a pleading deficiency; Defendant does not complain of and the Court does
not identify any prejudice to Defendant by allowing the amendment; and the amended pleading
does not appear on its face to be, and is not challenged as, futile.
III. CONCLUSION AND HOLDING
For the foregoing reasons, the Court holds that leave to amend is warranted and GRANTS
Plaintiff’s motion for leave to file her amended complaint.26 The Court ORDERS the Clerk of the
Court to immediately file “Plaintiff’s First Amended Complaint”27 as a separate docket entry,
which will be treated as Plaintiff’s live pleading.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 9th day of May 2022.
United States District Judge
Dkt. No. 5.
Dkt. No. 5-1.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?