United States District Court, S.D. Mississippi, Western Division
ORDER GRANTING MOTION FOR LEAVE TO AMEND COMPLAINT AND DENYING MOTION TO DISMISS
DAVID BRAMLETTE, District Judge.
This cause is before the Court on Defendants', Bill Bankston, Jennings Nettles, and Will Seal, Motion to Dismiss [docket entry no. 25] and Plaintiff's Motion for Extension of Time to File Reply Brief [docket entry no. 27], Motion to Amend/Correct Complaint [docket entry no. 28], and Motion to File Reply Brief Out of Time [docket entry no. 30]. Having considered the motions and responses, applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds as follows:
I. Factual and Procedural History
Plaintiff Easter Prater initiated this action on February 20, >2013 alleging seven counts of violations of her rights against Wilkinson County and members of its Board of Supervisors. Compl. p. 6-7, ECF No. 1. Defendants Bill Bankston, Jennings Nettles, and Will Seal filed their first motion to dismiss Prater's federal constitutional claims against them in their individual capacities based on qualified immunity on March 21, 2013. Mot. Dismiss, ECF No. 8. The Court entered an Order denying without prejudice this motion and ordering Prater to file "a Reply pursuant to Rule 7(a) of the Federal Rules of Civil Procedure, addressing the qualified immunity defense asserted by [the defendants], on or before November 29, 2013." Order p. 7, ECF No. 23. Because Prater did not thereafter file a timely reply, Bankston, Nettles, and Seal renewed their motion to dismiss. Mot. Dismiss, ECF No. 25.
Prater has since filed three motions to overcome the renewed motion: (1) motion for extension of time to file a reply, (2) motion to amend complaint, and (3) motion to file reply out of time. Because Prater attached no exhibits to her motion to amend, the Court ordered Prater to submit a proposed amended complaint. Order p. 1, ECF No. 35. Prater timely filed her proposed amended complaint, and Bankston, Nettles, and Seal thereafter submitted two supplemental briefs, both arguing that Prater's filing did not cure the original complaint's deficiencies. Rebuttal, ECF No. 37; Resp. Opp., ECF No. 38.
A. Motions for Extension of Time and Leave to File Out of Time
Prater filed two motions, docketed distinctly, requesting permission from this Court to file her court-ordered reply brief out of time. See Mot. Extension of Time to File Reply Brief, Mot. Extension of Time to File Resp./Reply as to Order on Mot. Dismiss ("Mot. 1"), ECF No. 27; Mot. Extension of Time to File Reply Brief Out of Time ("Mot. 2"), ECF No. 30. The texts of these motions are identical. The motions argue that Prater should be allowed to submit her reply brief out of time because she "mistakenly overlooked the portion of [this Court's] Order" ordering Prater to submit a reply brief. Mot. 1 p. 1; Mot. 2 p. 1. Prater attached her proposed reply brief as an exhibit to one of the motions. See Mot. 1 Ex. A, ECF No. 27-1.
In it, Prater admitted that she "failed to allege what words and actions were spoken and taken by each defendant which formed the basis of" her constitutional claims and "recognize[d] that [her complaint] might not have met the [heightened pleading] requirement". Mot. 1 Ex. A p. 2. She then uses her proposed reply brief to request leave to amend her complaint and to argue why amendment should be allowed. Mot. 1 Ex. A p. 2-3.
Because Prater's three motions all request what is ultimately the same relief, the Court will deny Prater's motions to file a reply brief out of time and for an extension of time and focus its attention on Prater's motion for leave to amend.
B. Motion to Amend Complaint
A party may amend its pleadings, not as a matter of course, only with either the written consent of the opposing party or by leave of court. Fed. R. Civ P. 15(a)(2). Because the defendants oppose Prater's motion to amend, she requires the Court's leave. "The court should freely give leave when justice so requires." Id . The Supreme Court has stated five circumstances when leave should not be given: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, and (5) futility of amendment. Foman v. Davis , 371 U.S. 178, 182 (1962).
The Court finds that none of the first four circumstances are applicable to this case, and the defendants do not argue that they are in their response to Prater's motion. Whether Prater should be granted leave to amend turns on the remaining circumstance: futility of amendment. "An amendment is futile if the amended complaint is subject to dismissal under Rule 12(b)(6) for failure to state a claim upon which relief could be granted." Black Farmers & Agriculturalists Ass'n, Inc. v. Hood, No. ...