Opinion
Case No. 1:07-cv-910.
March 14, 2008
Order Rejecting the Proposed Amended Complaint; Setting a Deadline for Plaintiff to Obtain Defendant's Consent or Move for Leave of Court
In September 2007, plaintiff Rodney D. Ellis ("Ellis") filed the original complaint. In December 2007, in lieu of an answer, defendant Marilyn A. Kaye-Kibbey ("Kibbey") filed a motion to dismiss the complaint or in the alternative for summary judgment ("MTD"). Kibbey's motion contends that the complaint should be dismissed under FED. R. CIV. P. 12(b)(6) for failure to state a claim because "Kibbey cannot be liable for breach of a non-disparagement agreement relating to statements she made as a third-party witness in another lawsuit." MTD at 2. Alternatively, Kibbey contends that she is entitled to summary judgment because there is no genuine issue that she revoked the contract on which Ellis's sole claim is based. MTD at 1.
On February 4, 2008, Ellis filed what purports to be an amended complaint; like the existing complaint, Ellis invokes diversity jurisdiction and asserts one count of breach of contract under state common law. Ellis overlooks the rule that after a responsive pleading has been filed, a party may amend a pleading only after seeking and obtaining the consent of the opposing party or leave of court. See Dubuc v. Green Oak Twp., 312 F.3d 736, 752 (6th Cir. 2002) (citing FED. R. CIV. P. 15(a)).
As our Circuit has explained, the Federal Rules of Civil Procedure do not necessarily require a written request for leave to amend a pleading, but the party must make a request either by written motion or in open court so that the opposing party has notice and a formal opportunity to object to the desired amendment:
[Defendants] erroneously assert that a party must file a motion for leave of the court to amend its pleadings. However, Federal Rule of Civil Procedure 15(a), its sole authority for this argument, "does not set forth any specific procedure for obtaining leave to amend. 6 Charles Alan Wright, Arthur Miller, Mary Kay Kane, FEDERAL PRACTICE PROCEDURE § 1485 (2d ed. 1990). The failure to require a specific procedure is consistent with Rule 15(a)'s admonition that "leave to amend a pleading `shall be freely given when justice so requires.'" R.S.W.W., Inc. v. City of Keego Harbor, 397 F.2d 427, 440 (6th Cir. 2005) (quoting Fed.R.Civ.P. 15(a)).
While leave to amend is usually sought via a motion, it may also be requested in open court. Wright, Miller Kane, supra, § 1485; see also PR Diamonds v. Chandler, 364 F.3d 671, 699 (6th Cir. 2004) (discussing district court's requirement based on local rules that motion for leave to amend be done by motion).Southern Elec. Health Fund v. Heritage Mut. Ins. Co., 148 F. App'x 497, 504 (6th Cir. 2005) (Boggs, C.J., joined by Cook, J., and Beer, D.J.) (paragraph break added).
In this case, the parties have not yet appeared in court, so Ellis could not and did not request leave to amend in open court, either.
ORDER
Accordingly, as authorized by W.D. MICH. L.CIV.R. 5.5, the plaintiff's proposed amended complaint [document #18] is NOT ACCEPTED FOR FILING.If the plaintiff wishes to file an amended complaint, he must do one of the following no later than Friday, April 11, 2008: (1)
obtain the consent of the defendant and file a notice stating that he has obtained such consent or (2) file a motion seeking leave to amend and attach a copy of the proposed amended complaint.If the defendant moves for leave to amend the complaint, the defendant MAY file a brief in opposition no later than fourteen days after being served with the motion.