United States District Court, W.D. North Carolina, Statesville Division
ERNESTINE HOUCK, as Executrix of the Estate of Walter Mark Houck, Plaintiff,
JOSHUA HOPKINS and BRANDON PHIL HOWELL, Defendants.
MEMORANDUM AND RECOMMENDATION AND ORDER
DAVID C. KEESLER, Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on "Plaintiff's Motion to Amend Complaint" (Document No. 27). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion, the record, and, applicable authority, the undersigned will grant the motion to amend, and recommend that the pending motions to dismiss be denied as moot.
Plaintiff Ernestine Houck ("Plaintiff") initiated this action with the filing of her "Complaint" (Document No. 1) on November 18, 2014. On January 12, 2015, Plaintiff filed an "Amended Complaint" (Document No. 12) as a matter of course "to address scrivener's errors identified by opposing counsel." See (Document No. 28, p.1). The "Amended Complaint" asserts the following claims for relief: (1) 42 U.S.C. § 1983 - Fourth Amendment; (2) wrongful death; and (3) obstruction of justice.
Also on January 12, 2015, Defendant Howell filed his "Motion By Defendant Brandon Phil Howell To [Dismiss] Plaintiff's Amended Complaint" (Document No. 13). Defendant Howell's motion seeks to dismiss the "Amended Complaint" "in its entirety" pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(6). (Document No. 13). "Defendant Joshua Hopkins's Partial Motion To Dismiss" (Document No. 19) was filed on February 2, 2015. Defendant Hopkins' motion seeks dismissal of Plaintiff's claim alleging obstruction of justice. (Document No. 20).
"Plaintiffs' Motion to Amend Complaint" was filed on March 11, 2015. Plaintiff asserts that the proposed Second Amended Complaint is necessary to modify or clarify some factual allegations, but does not add any new claims or theories of recovery. (Document No. 28). Defendants have filed responses in opposition arguing that the proposed amendments are futile. (Document Nos. 29 and 30).
The pending motions have been fully briefed and are ripe for review and disposition.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 applies to the amendment of pleadings and allows a party to amend once as a matter of course within 21 days after serving, or "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1). Rule 15 further provides:
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Under Rule 15, a "motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile." Nourison Rug Corporation v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001); see also, Foman v. Davis, 371 U.S. 178, 182 (1962). However, "the grant or denial of an opportunity to amend is within the discretion of the District Court." Pittston Co. v. U.S., 199 F.3d 694, 705 (4th Cir. 1999) (quoting Foman, 371 U.S. at 182).
It appears that there has been no initial attorney's conference and that no Court-sanctioned discovery has taken place thus far. See Local Rule 16.1. Furthermore, the undersigned is not persuaded that there is sufficient evidence of prejudice, bad faith, or futility to outweigh the policy favoring granting leave to amend. In fact, Defendants do not argue that the pending motion is brought in bad faith or ...