Sizemore v. Burnette et al
Filing
19
MEMORANDUM OPINION AND ORDER: granting the Plaintiff's 8 Motion for Leave to File his Amended Complaint; directing that Plaintiff's [8-1] proposed Amended Complaint be filed as a separate document and referred to as Plaintiff's Secon d Amended Complaint; denying as moot Defendants' 5 Motion to Dismiss and Defendants' 15 Motion for Extension of Time and for Court to Consider Late Reply. Signed by Judge Irene C. Berger on 6/23/2017. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ALEXANDER L. SIZEMORE,
Plaintiff,
v.
CIVIL ACTION NO. 5:17-cv-02498
W. MARK BURNETTE and
BURNETTE & BURNETTE, PLLC,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s Motion for Leave to File his Amended Complaint
(Document 8), the Plaintiff’s Memorandum in Support of His Motion for Leave to File His
Amended Complaint (Document 9), the Defendants’ Response in Opposition to Plaintiff’s Motion
to Amend Complaint (Document 13), and all attached exhibits. The Court has also reviewed the
Defendants’ Motion to Dismiss (Document 5), the Memorandum of Law in Support of Defendants’
Motion to Dismiss (Document 6) and the Plaintiff’s Response in Opposition to Defendants’ Motion
to Dismiss (Document 10). Finally, the Court has reviewed the Defendants’ Motion for Extension
of Time and for Court to Consider Late Reply (Document 15). For the reasons stated herein, the
Court finds that the Plaintiff’s motion for leave to amend should be granted, and that the
Defendants’ motion to dismiss and motion for extension of time should be terminated as moot.
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FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff, Alexander Sizemore, filed his complaint in the Circuit Court of Greenbrier
County, West Virginia, on March 21, 2017.1 The Defendants removed the action to this Court on
April 16, 2017, citing diversity jurisdiction.
Shortly after removal, on May 8, 2017, the
Defendants filed their pending motion to dismiss. On May 22, 2017, and in response to the
Defendants’ motion to dismiss, the Plaintiff filed a motion for leave to amend his complaint and
simultaneously filed his response in opposition to the motion to dismiss. On June 5, 2017, the
Defendants filed their response in opposition to the Plaintiff’s motion for leave to amend, but did
not timely file a reply to the Plaintiff’s response in opposition to the Defendants’ motion to dismiss.
However, on June 12, 2017, the Defendants filed a motion for extension of time and for the Court
to consider their late reply. With that motion, the Defendants filed a copy of their reply to the
Plaintiff’s response in opposition (Document 16).
DISCUSSION
The Plaintiff asserts that, pursuant to the Federal Rules of Civil Procedure, he may amend
his complaint as a matter of course because no responsive pleading has been filed by the
Defendants. He also states that his motion for leave to file the amended complaint and the
proposed Second Amended Complaint were filed within 21 days of receipt of the Defendants’
Rule 12(b)(6) motion to dismiss. The Plaintiff further argues that, even if leave of the Court is
1 The Court notes that both the attached exhibit containing the complaint from state court and the Defendants’ Notice
of Removal (Document 1) refer to the original removed complaint as the “Amended Complaint.” The Plaintiff notes
in his motion for leave to amend that this is the first time he has attempted to amend his complaint in federal court
since removal from state court and, therefore, also refers to his attached amended complaint as “Amended Complaint.”
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required, the Court should grant him such leave because the case has only recently begun, and
because the Defendants have yet to file an answer.
The Defendants counter that they do not consent to allowing the Plaintiff to amend his
complaint a second time, and further assert that the Court should not grant the Plaintiff leave to do
so. The Defendants argue that the Plaintiff has not provided the reasons for which he seeks leave
to amend his complaint a second time, and further assert that he seeks to do so merely to avoid the
issues raised in the Defendants’ motion to dismiss. The Defendants argue that it would be
inappropriate and prejudicial to allow the Plaintiff to correct the issues the Defendants put forth in
their motion to dismiss, and further argue that any amendment would be futile because the entire
case is frivolous.
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a party to “amend its
pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is
one to which a responsive pleading is required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P.
15(a)(1). Rule 15(a)(2) provides 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). The Rule
further provides that “[t]he court should freely give leave [to amend] when justice so requires.”
Id. The Fourth Circuit has stated that a motion to amend should be denied only “if one of three
facts are present: the amendment would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would be futile.” Mayfield v. Nat’l Ass’n
for Stock Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012)(citation omitted)(internal
quotation marks omitted); HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir. 2001).
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The Court finds that the Plaintiff’s motion for leave to amend should be granted. The
Defendants’ opposition to the motion to amend is based almost entirely on the argument that the
Plaintiff moves to amend his complaint to correct alleged deficiencies advanced in the Defendants’
motion to dismiss. However, the mere fact that the Plaintiff filed his motion to amend in response
to the Defendants’ motion to dismiss does not, in and of itself, evidence improper motive or bad
faith, as the Defendants suggest. Rule 15 gives a plaintiff the right to amend his or her complaint
“once as a matter of course within . . . 21 days after service of a motion under Rule 12(b) . . . .”
Fed. R. Civ. P. 15. This language evidences the intent of the Rules to give a plaintiff the
opportunity to amend a complaint and cure any deficiencies brought to light in a motion to dismiss.
While the procedural posture of the Plaintiff’s motion to amend at hand is slightly different due to
removal of this case from state court, the Court does not find that allowing the Plaintiff to amend
to further cure any deficiencies to be outside the interests of justice. If the Defendants view the
Plaintiff’s second amended complaint as legally insufficient, they can file a motion to dismiss
addressing the same for the Court’s consideration. However, allowing the Plaintiff leave to
correct the deficiencies addressed in the Defendants’ motion to dismiss will not prejudice the
Defendants in any manner, given the posture of the case.
Furthermore, the Defendants argue that the Plaintiff’s amendment would be futile because
his complaint, and the suit in general, is based on allegations the Defendant deems false.
However, the Court’s duty at this stage in the litigation is not to determine whether the allegations
in the Plaintiff’s complaint are true or false. In fact, when considering a motion to dismiss, the
Court must “accept as true all of the factual allegations contained in the complaint.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences
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from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). Simply arguing that the Plaintiff’s factual allegations are
false does not demonstrate futility or that the proposed amended complaint will not withstand a
motion to dismiss.
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
the Plaintiff’s Motion for Leave to File his Amended Complaint (Document 8) be GRANTED, the
Plaintiff’s proposed Amended Complaint (Document 8-1) be FILED as a separate document, and
for purposes of clarity, going forward, the proposed Amended Complaint shall be referred to as
the Plaintiff’s SECOND AMENDED COMPLAINT. The Court further ORDERS that the
Defendants’ Motion to Dismiss (Document 5) and Defendants’ Motion for Extension of Time and
for Court to Consider Late Reply (Document 15) be DENIED AS MOOT.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:
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June 23, 2017
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