Phillips v. Department of the Army et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS ARMISTEAD PHILLIPS, 	)
)
Plaintiff, 	)
)
v. 	) CIVIL ACTION 23-0140-WS-MU
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. 	)
ORDER
The plaintiff has filed a motion for leave to amend the complaint. (Doc. 41). The
private defendant (“EOM”) objects on the sole grounds of futility. (Doc. 45).
“The futility threshold is akin to that for a motion to dismiss ….” Bill Salter
Advertising, Inc. v. City of Brewton, 2007 WL 24099819 at *2 (S.D. Ala. 2007). The
Court’s practice is to grant leave to amend when the opponent’s futility argument
amounts effectively to a detailed motion to dismiss, leaving it to the opponent to then file
a motion to dismiss the amended pleading. E.g., Sullivan v. Wells Fargo Bank, N.A., 418
F. Supp. 3d 939, 942 (S.D. Ala. 2019); Howard v. Bayrock Mortgage Corp., 2010 WL
2734649 at *1 (S.D. Ala. 2010). EOM’s objection falls in this category.
Accordingly, the motion for leave to amend is granted. The plaintiff is ordered
to file and serve his amended complaint on or before December 14, 2023. EOM’s
pending motion for judgment on the pleadings, (Doc. 33), which is directed to the
original complaint, is denied as moot.
DONE and ORDERED this 7th day of December, 2023.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
Case 1:23-cv-00140-WS-MU Doc# 47 Filed 12/07/23 Page 1 of 1 PageID#
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