Hall et al v. Hall et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
SAMUEL H. HALL, JR.,
Plaintiff,
v.
ELSA EMILY HALL,
Defendant.
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) 	Civil No. 2013-95
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ATTORNEYS:
Marie E. Thomas-Griffith, Esq.
St. Thomas, U.S.V.I.
For the plaintiff.
Samuel H. Hall, Jr., Esq.
St. Thomas, U.S.V.I.
Pro se plaintiff.
Carl A. Beckstedt, III, Esq.
St. Crois, U.S.V.I.
For the defendant.
ORDER
GÓMEZ, J.
Before the Court is the November 15, 2013 motion of
Defendant Elsa Emily Hall (“Elsa Hall”) to dismiss the
complaint. She moves to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
On October 1, 2013, Samuel H. Hall, Jr. (“Samuel Hall”)
filed a complaint against Elsa Hall. On November 15, 2013, Elsa
Hall filed a motion to dismiss Samuel Hall’s complaint. On
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Hall v. Hall
Civil No. 2013-95
Order
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December 4, 2013, the parties agreed that Samuel Hall would have
“an extension of time until December 16, 2013 in which to
respond to” Elsa Hall’s motion. (ECF No. 6.) On December 16,
2013, Samuel Hall filed a response to the motion to dismiss and
an amended complaint.
Given this backdrop, before the Court can rule on the
pending motion to dismiss, as a threshold matter, the Court must
determine whether the original complaint or the amended
complaint is the operative complaint.
Federal Rule of Civil Procedure 15 governs the amendment of
complaints. That rule, in relevant part, states:
(1) Amending as a Matter of Course. A party may
amend its pleading once as a matter of course
within:
(B) . . . 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.
(2) Other Amendments. In all other cases, a party
may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.
Fed. R. Civ. P. 15(a)(emphasis added) (“Rule 15(a)”).
Furthermore, “[w]hen a party may or must act within a
specified time after service and service is made under [Federal
Rule of Civil Procedure] 5(b)(2)(C), (D), (E), or (F), 3 days
are added after the period would otherwise expire . . . .” Fed.
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Hall v. Hall
Civil No. 2013-95
Order
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R. Civ. P. 6(d). “A paper is served under [Federal Rule of Civil
Procedure 5(b)(2)(E)] 	by . . . sending it by electronic means
if the person consented in writing . . . .” 	Fed. R. Civ. P.
5(b)(2)(E).
This Court utilizes an electronic filing service. The
Court’s Local Rules of Civil Procedure provide that
“[r]egistration as a Filing User [in the Court’s electronic
filing service] constitutes consent to electronic service of all
documents as provided in these Rules in accordance with the
Federal Rules of Civil Procedure.” LRCi 5.4(b). The “Notice of
Electronic Filing that is automatically generated by the Court’s
Electronic Filing System . . . constitutes service of the filed
document on Filing Users.” LRCi 5.4(i)(1).
Samuel Hall filed his original complaint on October 1,
2013. Elsa Hall did not file a responsive pleading to Samuel
Hall’s original complaint. Instead, she filed a “motion under
Rule 12(b)” on November 15, 2013. That motion was served on
Samuel Hall through the Court’s electronic filing service on the
same day. Because Samuel Hall was served electronically, he was
permitted to file an amended complaint as a matter of course
with 24 days of receiving service of the motion—until December
9, 2013. See Rule 5(b)(2)(e), 6(d), 15(a)(1)(B). A week after
that date, Samuel Hall filed his amended complaint.
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Hall v. Hall
Civil No. 2013-95
Order
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Because Samuel Hall filed his amended complaint after he
was no longer permitted to amend his complaint as a matter of
course, he could only file an amended complaint with either the
other party’s written consent or the Court’s leave. See Fed. R.
Civ. P. 15(a)(2). There is no record evidence that the parties
agreed to extend his time to file an amended complaint. Samuel
Hall also did not obtain the Court’s leave to file his amended
complaint. Thus his amended complaint may only be treated as
operative if this Court allows it.
Presented with similar cases, this Court has acknowledged
that “some courts have held that an untimely amended pleading
served without judicial permission may be considered as properly
introduced when leave to amend would have been granted had it
been sought, and when it does not appear that any of the parties
will be prejudiced by allowing the change.” Cromwell v. Int'l
Union, CIV 2007-141, 2010 WL 5175038, at *1 (D.V.I. Dec. 6,
2010)(quoting Straub v. Desa, Indus. Inc., 88 F.R.D. 6, 8
(M.D.Pa.1980); see, e.g., U.S. ex rel. Mathews v. HealthSouth
Corp., 332 F.3d 293, 295-97 (5th Cir. 2003)(declining to deem
the amended complaint properly introduced because allowing
retroactive leave to amend the complaint would have prejudiced a
party); U.S., for Use & Benefit of Dorfman, v. Standard Sur. &
Cas. Co. of New York, 1 F.R.D. 239, 240 (S.D.N.Y. 1940)(deeming
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Hall v. Hall
Civil No. 2013-95
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the amended complaint properly introduced); see also 6 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1484 (3d ed. 2014)). This practice is in accord with “the
overall liberal amendment policies of Rule 15(a).” Cromwell,
2010 WL 5175038, at *1 (quoting Straub, 88 F.R.D. at 8).
The Court finds that Samuel Hall would have been granted
leave to file his amended complaint if he had requested it.
Additionally, Elsa Hall will not be substantially prejudiced. As
such, the Court will grant Samuel Hall leave nunc pro tunc to
December 16, 2013, to file the amended complaint and will treat
the amended complaint as the operative complaint.
Where, as here, a defendant files a motion to dismiss and
the plaintiff subsequently “fil[es] . . . [an] amended
complaint[,] . . . [t]hat filing . . . render[s] moot [the]
defendant[’s] motion[] to dismiss.” Merritt v. Fogel, 349 F.
App'x 742, 745 (3d Cir. 2009).
The premises having been considered, it is hereby
ORDERED that Elsa Hall’s motion to dismiss is MOOT.
S\
Curtis V. Gómez
District Judge
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