Amaro v. Carter

In the United States District Court for the Southern District of Georgia Brunswick Division PATSY ANN AMARO, et al., Plaintiffs, 2:22-CV-23 v. JOHN CARTER, et al., Defendants.

ORDER This case arises out of the events surrounding the death of Mr. Johnny Conley during his ten days as a pretrial detainee at the Wayne County jail in Jesup, Georgia. Dkt. No. 1 ¶¶ 1-3.

Before the Court is Defendants John Carter, Tyra Little, James Stevens, Cheryl Harris, Jonathan McCallum, Garyon Johnson, Mary Ann Blash, and Noah Saedroa’s joint motion to dismiss. Dkt. No. 22. In Plaintiffs’ opposition brief, they ask the Court for leave to amend “should this Court believe that any aspect of the Complaint fails to state a claim against any of the Defendants as alleged.” Dkt. No. 28 at 25. Plaintiffs’ request is improper and must be DENIED.

It is well established that a party cannot move the Court for leave to amend by attaching the request in a responsive pleading.

Fed. R. Civ. P. 7(b)(1) (“A request for a court order must be made by motion. The motion must:(A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.” (emphasis added)); see also Posner v. Essex Ins. Co., 178 F.3d 1209, 122 (11th Cir. 1999) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”). Moreover, Federal Rule of Civil Procedure 7(b) also requires Plaintiffs “to attach a copy of the[] proposed amendment or describe the substance of the[] proposed amendment.” Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009). Neither Federal Rule of Civil Procedure 7 nor Federal Rule of Civil Procedure 15 permits a party to imbed in a brief a motion for leave to amend in the event the Court dismisses his complaint for failure to state a claim as Plaintiffs attempt to do here.

Accordingly, Plaintiffs have the option, if they choose, to file a motion for leave to amend their complaint within fourteen (14) days of the date of this Order. If Plaintiffs do not file a proper motion within that time, Plaintiffs’ complaint, dkt. no. 1, shall remain the operative pleading in this suit, and the Court will take under consideration Defendants’ motion to dismiss, dkt. no. 22, as currently briefed, dkt. nos. 28, 31.

SO ORDERED this 1st day of December, 2022.

_________________________________ HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA