Myart v. Taylor et al

Filing 16

ORDER GRANTING 15 Motion for Leave to File. Signed by Judge David A. Ezra. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES W. MYART, JR.,

§
§
Plaintiff,
§
§
vs.
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§
IVY TAYOR, individually and in her §
official capacity as Mayor of the City of §
San Antonio, SHERYL SCULLEY,
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individually and in her official capacity §
as City Manager of the City of San
§
Antonio, WILLIAM McMANUS,
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individually and in his official capacity, §
MARTHA ZEPEDA, individually and §
in her official capacity as city attorney, §
OFFICERS RYAN McFARLAND,
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ADAM STALKER, MICHAEL
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BAGGETT, GILBERT GONZALEZ, §
ASHLEA BRUSTER, and GEORGE §
MORALES, individually and in their §
official capacity, and THE CITY OF
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SAN ANTONIO,
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Defendants.
§

No. SA:16–CV–455–DAE

ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT
On June 13, 2016, Plaintiff James W. Myart, Jr. filed a Motion
seeking Leave to File his Second Amended Complaint against all Defendants.
(Dkt. # 15.) Federal Rule of Civil Procedure 15 allows a party to “amend its
pleading only with the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(2). “The policy of the Federal Rules is to permit liberal
1

amendment.” Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th Cir. 2006)
(quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597–98 (5th Cir. 1981)).
Accordingly, when determining whether to grant leave to amend pleadings, a court
should only deny leave if there exist “such factors as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, and
futility of amendment.” Matter of Southmark Corp., 88 F.3d 311, 314–15 (5th Cir.
1996).
Here, Plaintiff complied with Federal Rule 15 and sought leave of the
Court to file his Second Amended Complaint. (Dkt. # 15.) The Court has
reviewed the proposed Second Amended Complaint, and finds that it addresses
deficiencies in certain claims alleged in the First Amended Complaint (Dkt. # 5),
and adds Ivy Taylor as a defendant in her individual capacity, 1 but does not further
add new defendants or allege any additional causes of action. (See Dkt. # 15-1.)
There is no indication that the Second Amended Complaint was filed in bad faith
or for purposes of undue delay. Accordingly, Plaintiff’s Motion for Leave to File
his Second Amended Complaint is hereby GRANTED (Dkt. # 15).
However, the Court notes that this will be Plaintiff’s third complaint
filed in this case in less than one month (see Dkts. ## 5, 10), and such liberal leave
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The First Amended Complaint alleges claims against Ms. Taylor in her official
capacity only. (Dkt. # 5.)
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to amend will not be extended to Plaintiff, should he attempt to file a third
amended complaint.
Due to the filing of Plaintiff’s Second Amended Complaint,
Defendant City of San Antonio’s (the “City”) Amended Motion to Dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(4) and 12(b)(5) is hereby
DISMISSED AS MOOT, as it refers to a complaint that is no longer live. (Dkt.
# 12.) The City’s Answer, insofar as it is also a Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), is also DISMISSED AS MOOT (Dkt.
# 13).2
IT IS SO ORDERED.
DATED: San Antonio, Texas, June 16, 2016.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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The City is advised, should it desire to file an amended 12(b)(6) motion, to file it
as a docket entry separate from its answer.
3