Musa, Akeem v. Kabul, Inc. et al

Filing 26

ORDER denying 21 Motion for Entry of Default; granting 24 Motion to Amend Complaint. Plaintiff shall serve a copy of the amended complaint on defendant Kabul, Inc. After being served with a copy of the amended complaint, defendant Kabul, Inc. shall have 14 days to respond to the amended complaint. Hamed Zafari is no longer a defendant in this case, and the Clerk's office will update the caption accordingly. Signed by District Judge James D. Peterson on 10/5/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

AKEEM MUSA,
Plaintiff,
v.
KABUL, INC. and HAMED ZAFARI,

ORDER
15-cv-804-jdp

Defendants.
Plaintiff Akeem Musa seeks unpaid wages from defendants. Defendant Kabul, Inc. is a
corporation operating a restaurant in Madison, Wisconsin. Defendant Hamed Zafari is the
owner of Kabul. Kabul is unrepresented. Zafari is pro se. The court has advised Kabul
numerous times that Kabul must retain counsel to appear in this case because it is a
corporation and that failure to retain counsel can result in a default judgment against it.
Dkt. 6; Dkt. 8; Dkt. 16; Dkt. 18. Kabul is still unrepresented. Musa sought to dismiss Zafari
from this case under Federal Rule of Civil Procedure 41(a)(2). The court denied that motion
and explained that Rule 41(a)(2) was not the proper vehicle to dismiss a party from an
action. Dkt. 23.
Musa now moves under Rule 15(a)(2) for leave to file an amended complaint.
Dkt. 24. He has attached the proposed amended complaint to his motion and represents to
the court that the only difference between the original complaint and the amended complaint
is that the latter leaves Kabul as the sole defendant. Musa also states that he has made
numerous attempts to contact Zafari but received no response.
The court will grant Musa’s motion. Rule 15(a)(2) permits a party to amend his
pleading by “leave of court . . . which shall be freely given when justice so requires.” Thus, a

district court should grant leave to amend a complaint unless the court finds “undue delay,
bad faith, dilatory motive, undue prejudice to the opposing party, or when the amendment
would be futile.” Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001).
Here, the court finds no reason to deny Musa leave to amend the complaint. Musa should
file the amended complaint as a separate document, serve a copy on Kabul, and submit proof
of service to the court. Under Rule 15(a)(3), Kabul may have 14 days from the date of service
to respond the amended complaint. And because the amended complaint supersedes the
original complaint, Musa’s motion for entry of default, Dkt. 21, will be denied.

ORDER
IT IS ORDERED that:
1. Plaintiff Akeem Musa’s motion for leave to file first amended complaint,
Dkt. 24, is GRANTED.
2. Plaintiff shall serve a copy of the amended complaint on defendant Kabul, Inc.
3. After being served with a copy of the amended complaint, defendant Kabul,
Inc. shall have 14 days to respond to the amended complaint.
4. Plaintiff’s motion for entry of default, Dkt. 21, is DENIED.
5. Hamed Zafari is no longer a defendant in this case, and the Clerk’s office will
update the caption accordingly.
Entered October 5, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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