Opinion
24-cv-11270
11-15-2024
GREGORY HARDY, Plaintiff, v. WHITAKER, et al., Defendants.
Honorable Thomas L. Ludington
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE (ECF NO. 48) AND STRIKING PLAINTIFF'S AMENDED COMPLAINT (ECF NO. 46)
ELIZABETH A. STAFFORD, United States Magistrate Judge
Plaintiff Gregory Hardy has made another improper filing seeking to amend his complaint. ECF No. 46.In an order striking Hardy's improper motion for leave to file a second amended complaint, the Court gave him leave to refile a compliant motion by November 8, 2024. ECF No. 43. On October 30, Hardy filed another deficient motion, which the Court again struck. ECF No. 44; ECF No. 45. Hardy has filed an amended complaint, which again does not adhere to the local rules or the Court's orders. ECF Defendants move to strike the filing. ECF No. 48. The Court GRANTS Defendants' motion and STRIKES Hardy's filing.
The Honorable Thomas L. Ludington referred the case for all pretrial matters under 28 U.S.C. § 636(b). ECF No. 10.
Hardy's latest filing purports to contain a proposed amended complaint and a brief in support of those amendments. ECF No. 46. But the entire filing comprises the proposed amended complaint, as the “brief” section asserts a First Amendment retaliation claim not included in the “amended complaint” section. See id., PageID.270-272. Thus, Hardy has again filed an unauthorized amended complaint without first seeking leave to amend.
The filing is also not an all-inclusive complaint and suggests that Hardy intended to supplement his operative complaint. For example, Hardy does not rename the original individual defendants, instead referring to them collectively as the Genesee County Sheriff deputies. Id., PageID.266. And Hardy requests that a First Amendment retaliation claim be “added” to his operative complaint. Id., PageID.272.
Federal Rule of Civil Procedure 15(d) permits a party to file a supplemental pleading “setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” That is, a plaintiff may “update his complaint to add allegations of later events relating to his original complaint.” Cage v. Henry, No. 1:09-cv-512, 2010 WL 1254562, at *1 (W.D. Mich. Mar. 26, 2010). Hardy's new allegations concern the same events described in his operative complaint, not later events. Thus, he must seek leave to file an amended complaint that would replace the earlier pleading. See 6A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 1504 (3d ed. 2024) (amended pleadings “relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading”). Because Hardy's proposed amended complaint does not include all claims or name all parties, it cannot replace the operative complaint.
The Court STRIKES Hardy's filing (ECF No. 46). Hardy's amended complaint filed on August 7, 2024 remains the operative complaint (ECF No. 13).
NOTICE TO PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed.R.Civ.P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.