Opinion
Civ. Act. 1:22-cv-388-TFM-B
05-19-2022
FRANKLIN V. ANDERSON, Plaintiff, v. CITY OF PRICHARD, et al., Defendants.
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, UNITED STATES DISTRICT JUDGE.
Pending before the Court is the Report and Recommendation of the Magistrate Judge filed on April 13, 2022. See Doc. 20. As discussed in more detail in the Court's memorandum opinion and order on April 28, 2022, the Court construed a document filed by Plaintiff as a motion to amend and directed Plaintiff file a brief in support of the motion on or before May 2, 2022. See Docs. 22, 25. The Court also directed Plaintiff to clarify whether he was filing objections to the same Report and Recommendation. Id. The deadline came and went with no response from the Plaintiff.
Now appearing is the final defendant, Jonathan C. Anthony who was previously addressed in a separate Report and Recommendation that was adopted. See Docs. 19, 25. In that order, the Court instructed Plaintiff to properly serve Defendant Anthony within twenty-one days of the adoption of the Report and Recommendation. See Doc. 19. Plaintiff, while the Report and Recommendation was pending, accomplished service on April 28, 2022 mere hours before the Report and Recommendation was adopted. Defendant Anthony now files a motion to join the previously filed motion to dismiss (Doc. 13) in which he adopts the same reasons, by noting that the Report and Recommendation has not been formally adopted yet and no objections were filed. See Doc. 26. This throws yet one more procedural wrinkle in an already convoluted docket sheet. While the Court would certainly permit Defendant Anthony to assert his own motion to dismiss stating the same basis, the Court is loath to permit him to piggyback on a fully submitted motion filed over six months ago which has already been addressed in a report and recommendation simply because the recommendation has not yet been adopted. To do so would technically modify the report and recommendation and deprive Plaintiff the opportunity of his right to respond to the separate Rule 12(b) motion. Further, there is no specific language in Fed.R.Civ.P. 12(b) which states a motion to join a motion to dismiss actually constitutes a properly submitted Rule 12(b) defense.
As such, to clean up the docket sheet and make it clear for all parties, the Court finds the following:
(1) As Plaintiff did not file a response to the Court's prior order (Doc. 25), the Court determines that no party has filed objections to the Report and Recommendation (Doc. 20). Therefore, after due and proper consideration of the issues raised, and there having been no objections filed, the recommendation (Doc. 20) of the Magistrate Judge is ADOPTED as the opinion of this Court.
(2) Consequently, the Motion to Dismiss (Doc. 13) is GRANTED in part and DENIED in part.
a. The motion is granted to the extent the Plaintiff's claims against the City of Prichard Police Department are DISMISSED with prejudice.
b. The motion is DENIED in all other respects as the Court declines to dismiss the action, but will require Plaintiff to file an amended complaint as discussed in the Report and Recommendation (Doc. 20). The Amended Complaint shall be filed on or before June 3, 2022.
(3) Defendant Jonathan C. Anthony's Motion to Join (Doc. 26) is DENIED. However, the Court will extend the deadline for Defendant Anthony to file his answer or other responsive pleading to fourteen days from the date the Plaintiff files his amended complaint so that Defendant Anthony can simply respond to the amended complaint along with any other Defendant that wishes to file a motion in accordance with Fed.R.Civ.P. 15(a)(3). Should Plaintiff fail to file an amended complaint, then Defendant Anthony may file his own responsive pleading on or before June 17, 2022.
DONE and ORDERED.