Motion Practice • Amendment • Fed.R.Civ.P. 15(a)(1)

Smith v. Unilife Corp., PICS Case No. 14-0243 (E.D. Pa. Feb. 4, 2014) Baylson, J. (4 pages).

The court held plaintiff could not amend his complaint as a matter of course because defendants had already filed a motion to dismiss. The court allowed plaintiff to either seek agreement from opposing counsel to file an amended complaint or file a motion to allow the filing of an amended complaint.

Plaintiff filed this action against his former employer and its parent corporation. The chief operating officers of both corporations were also individually named as defendants. The corporate defendants filed a motion to dismiss plaintiff’s wrongful termination count on Nov. 8, 2013. On that same day, the individual defendants filed their answer to the complaint. Plaintiff filed a notice of dismissal as to the wrongful termination count on Nov.r 20, 2013. The corporate defendants filed their answer to the original complaint on Jan. 14, 2014. Plaintiff filed an amended complaint on January 24, 2014, without written consent from defendants or leave of court. The amended complaint eliminated the count for wrongful termination against the corporate defendants, but included a new count for retaliation.

A party may amend a complaint as a matter of right within 21 days of service of the responsive pleading, or 21 days after service of a motion under Rule 12, whichever is earlier. Fed.R.Civ.P. 15(a)(1). Although a prior version of the rule allowed a plaintiff to amend as a matter of course until a responsive pleading was served, an amendment to the rule in 2009 eliminated the distinction between motions to dismiss and responsive pleadings.

The motion filed by the corporate defendants in November 2013 was the event that triggered the time for filing an amended complaint under Fed.R.Civ.P. 15(a)(1), not the answer filed later by the corporate defendants. Plaintiff had 21 days from Nov. 8, 2013, to file an amended complaint as a matter of right.

Under Fed.R.Civ.P. 15(a)(2), plaintiff was allowed to amend only if he had the consent of the opposing parties or if he sought leave from the court to file an amended pleading. The court noted that it did not appear that defendants opposed plaintiff’s amended complaint, so the court encouraged plaintiff to seek the agreement of opposing counsel, or else file a motion for the amendment.