Opinion
Case No. A1-04-08
May 5, 2004
ORDER GRANTING PLAINTIFF'S) MOTION FOR LEAVE TO FILE AN AMENDED PETITION
Before the Court is the Plaintiff's Motion for Leave to File an Amended Petition. The plaintiff, Michael Howard Hunter, has filed a pro se petition for a writ of error corum nobis under 28 U.S.C. § 1651(a) alleging that two of his prior convictions were invalid. Hunter now seeks to amend his petition. In his amended petition, Hunter sets forth additional factual assertions. The United States did not respond to the motion to amend.
Rule 15 of the Federal Rules of Civil Procedure provides in part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). It is generally left to the court's discretion whether to grant leave to file an amended pleading. Gamma-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1255 (8th Cir. 1994); Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 224 (8th Cir. 1994); Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992).
Unless there is good reason for denial, such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment, leave to amend is generally granted. Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908 (8th Cir. 1999); Brown v. Wallace, 957 F.2d 564, 566. Although a party does not have an absolute right to amend a pleading, such motion should only be denied on the merits if it asserts clearly frivolous claims or defenses. See Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908 (citing Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 224 and Gammas-10 Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244, 1255 (8th Cir. 1994), cert. denied, 513 U.S. 1198 (1995)). "Likelihood of success on the new claim or defense is not a consideration for denying leave to amend unless the claim is clearly frivolous." Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908.
After reviewing Hunter's proposed amended petition, the Court questions the merits of his claims. Nevertheless, given the Eighth Circuit's clear pronouncement in McLaurin v. Prater 30 F.3d 982, 984 (8th Cir. 1994), and the general standard for allowing amended pleadings, the Court GRANTS Hunter's Motion for Leave to File an Amended Complaint. (Docket No. 13). The Court further ORDERS the Clerk of Court to file the amended petition Hunter lodged with his motion. The Court also directs the Clerk of Court to serve the amended petition on behalf of the plaintiff, Michael Howard Hunter.
IT IS SO ORDERED