Opinion
CASE NO. 3:10-cv-104-J-25TEM.
August 12, 2010
ORDER
This matter is before the Court on Plaintiffs' Unopposed Motion to Amend Complaint and Demand for Jury Trial (Doc. #12). Plaintiffs seek to amend the complaint for a second time in order to correct a pleading deficiency that was raised by the United States in its pending motion to dismiss (Doc. #10). Plaintiffs' counsel avers that defense counsel has no objection to the relief requested in the instant motion (Doc. #12 at 2). No opposition has otherwise been filed.
In the motion to dismiss (Doc. #10), the United States moves to dismiss the Army Corps of Engineers as an improper defendant under the Federal Tort Claims Act ("FTCA"). The FTCA does not authorize an action against, inter alia, a federal agency. See 28 U.S.C. § 2679(a). The proposed second amended complaint corrects the style of the case by listing United States of America as the defendant rather than the Army Corps of Engineers (see Doc. #12, Exhibit 1, at 6-14).
Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15; Foman v. Davis, 371 U.S. 178, 182 (1962). In the language of the Foman Court,
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'Foman, 371 U.S. at 182.
Upon consideration, the Court finds Plaintiffs' Motion to Amend (Doc. #12) not to be in bad faith, for purposes of delay, or for any suspect reason stated above. Thus, having reviewed this matter, it is hereby ORDERED:
1. Plaintiffs' Unopposed Motion to Amend Complaint and Demand for Jury Trial (Doc. #12) is GRANTED.
2. The Clerk is directed to file Plaintiffs' Second Amended Complaint, which is attached as "Exhibit 1" to Plaintiffs' Motion to Amend (Doc. #12 at 6-14).
3. The United States' pending motion to dismiss (Doc. #10) is DEEMED MOOT.DONE AND ORDERED at Jacksonville, Florida.