UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dr. Jeffrey Isaacs

v. Case No. 17-cv-40-LM Opinion No.

Trustees of Dartmouth College, NH Board of Medicine, and Dartmouth Hitchcock Medical Center

O R D E R

Dr. Jeffrey Isaacs is a former resident in psychiatry in

the Graduate Medical Education program at Dartmouth Hitchcock

Medical Center (“DHMC”). Asserting claims that arise from a

disciplinary action taken against him by the New Hampshire Board

of Medicine (“Board”), Dr. Isaacs is suing the Board, DHMC, and

the Trustees of Dartmouth College (“Trustees”). After the Board

and the Trustees each filed a motion to dismiss, plaintiff filed

a pleading captioned “Motion to Amend Complaint as a Matter of

Course,” to which he attached his first amended complaint

(“FAC”). That motion is currently before the court. The Board

and the Trustees object; DHMC does not. For the reasons that

follow, plaintiff’s FAC was properly filed pursuant to Rule

15(a)(1)(B) of the Federal Rules of Civil Procedure (“Federal

Rules”). As a consequence, the FAC is the operative complaint in this case, but, for reasons explained more fully below,

plaintiff’s motion to amend is denied as moot.

I. Discussion

In his motion, plaintiff relies upon both Rule 15(a)(1),

which governs amendment as of right, and Rule 15(a)(2), which

governs permissive amendment. More specifically, he asserts

that he is entitled to amend his complaint without leave of the

court, under Rule 15(a)(1), but he also asserts in the

alternative, and out of an abundance of caution, that even if

Rule 15(a)(1) does not apply, the court should grant him leave

to amend his complaint under the standard set out in Rule

15(a)(2). Because plaintiff’s FAC was properly filed pursuant

to Rule 15(a)(1), the court need not reach his argument that he

would be entitled to permissive amendment under Rule 15(a)(2).

With regard to amendment as of right, which requires no

motion, the Federal Rules provide as follows:

A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) 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.

2 Fed. R. Civ. P. 15(a)(1). Where, as here, “a plaintiff seeks to

amend his or her complaint against multiple defendants, each

defendant is treated separately under Rule 15 for purposes of

amending as of right.” Cowan v. Miller, No. 2:15-cv-12428,

, at *2 (E.D. Mich. Aug. 16, 2016) (citing Dewald v.

Clinton, No. 05-71492,

, at *1 (E.D. Mich. Mar. 4,

2010); Williams v. Bd. of Regents,

(11th

Cir. 2007); Scott-Blanton v. Universal City Studios Prods.,

LLLP,

(D.D.C. 2007)); see also Culver v.

Lithia Motors, Inc., Civ. No. 15-669 MCA/SCY,

,

at *7 (D.N.M. May 12, 2016). In the discussion that follows,

the court treats each defendant separately.

A. The NH Board of Medicine

In his original eight-count complaint, plaintiff asserted

five claims against the Board. On March 22, the Board filed a

motion to dismiss: (1) all five of plaintiff’s claims under

Rules 12(b)(1) and 12(b)(6); and (2) four of the five claims on

grounds that they are barred by the Eleventh Amendment. Before

the deadline for objecting to the Board’s motion, see LR 7.1(b),

plaintiff filed a motion, assented to by the Board, asking the

court to extend the deadline for responding to the Board’s

motion to dismiss until May 1. The court granted plaintiff’s

3 motion. On May 1, he filed both an objection to the Board’s

motion to dismiss and the motion to amend that is currently

before the court.

Plaintiff asserts that he is entitled to amend his

complaint as a matter of course under Rule 15(a)(1). The Board

disagrees, arguing that under Rule 15(a)(1)(B), the window for

such an amendment closed on April 12, 21 days after the Board

served its motion to dismiss. While a strict reading of Rule

15(a)(1)(B) might support the Board’s position, that position

fails to account for the Board’s own assent to plaintiff’s

motion to extend the deadline for responding to the motion to

dismiss. If plaintiff’s objection to the Board’s motion to

dismiss was timely filed, and the Board makes no argument to the

contrary, it would defy common sense for the court to rule that

plaintiff’s contemporaneously filed FAC, which is also a

response to the motion to dismiss, was untimely. Thus, as to

the Board, plaintiff’s FAC was properly filed under Rule

15(a)(1).

Because the FAC is now the operative complaint against the

Board, the Board’s pending motion to dismiss the original

complaint is moot. That said, the court notes that in the

Board’s objection to plaintiff’s motion to amend, it responds to

4 plaintiff’s assertion that even if Rule 15(a)(1) does not apply,

he should be granted leave to amend his complaint under Rule

15(a)(2). In so doing, the Board argues that plaintiff’s

proposed amendment would be futile, and incorporates by

reference the arguments it advanced in its motion to dismiss the

original complaint. Because futility is assessed under the same

standard that applies to motions to dismiss filed under Rule

12(b)(6), see Privitera v. Curran (In re Curran),

(1st Cir. 2017), it appears that the Board’s objection to

plaintiff’s motion to amend, in conjunction with its previously

filed motion to dismiss, would provide the court with everything

necessary to determine whether plaintiff’s FAC states a claim

upon which relief can be granted. The only thing lacking is a

motion to dismiss the FAC. Given the state of the record, and

in the interest of economy, the Board may, if it chooses to do

so, file a motion to dismiss the FAC that simply incorporates,

by reference, the arguments it made in its first motion to

dismiss and its objection to plaintiff’s motion to amend.

B. The Trustees of Dartmouth College

In his original complaint, plaintiff asserted six claims

against the Trustees. On April 17, the Trustees moved to

dismiss, arguing that: (1) plaintiff’s claims are barred by res

5 judicata; (2) those claims are untimely; and (3) they are not a

state actor subject to suit through

. Plaintiff

filed his motion to amend and his FAC on May 1, which is less

than 21 days after the Trustees served their motion to dismiss.

The Trustees argue that “[a]s the New Hampshire Board of

Medicine has correctly pointed out, Dr. Isaacs’ time to amend

his Complaint as of right expired 21 days after that Defendant’s

March 22, 2017 Rule 12(b)(6) motion was filed.” Def.’s

Opposition to Mot. to Amend (doc. no. 20) 7. That argument,

however, ignores the rule that “each defendant is treated

separately under Rule 15 for purposes of amending as of right.”

Cowan,

, at *2. Based upon Cowan, plaintiff had

21 days from April 17 to amend his complaint as a matter of

course with respect to the Trustees. Because plaintiff filed

his FAC less than 21 days after April 17, he satisfied Rule

15(a)(1)(B) as to the Trustees. That makes the FAC the

operative complaint against the Trustees, and because the FAC is

the operative complaint, the Trustees’ motion to dismiss the

original complaint is moot.

The Trustees also argue that by filing a motion to amend,

rather than filing his FAC without a motion, plaintiff waived

his right to amend his complaint as a matter of course. For

6 that proposition, they rely upon Coventry First, LLC v. McCarty,

(11th Cir. 2010) (per curiam). In that case, the

plaintiff “could have amended its complaint as a matter of

course [but] [i]nstead, it filed an unnecessary motion to amend,

with the proposed amendments attached.”

. The trial

court denied the motion to amend, and the question before the

court of appeals was “whether, under Rule 15(a) of the Federal

Rules of Civil Procedure, the District Court had the discretion

to deny the motion to amend as futile, given that Coventry could

have filed an amended complaint as a matter of course.”

The court of appeals held that the District Court did not

err by reaching the question of futility, explaining that by

filing a motion to amend, the plaintiff had “waived the right to

amend as a matter of course and . . . invited the District Court

to review its proposed amendments.” Coventry,

.

According to the appellate court, after the plaintiff “invited

the District Court to review its proposed amendments,”

it

could not “complain that the District Court accepted [its]

invitation,”

Even if the rule from Coventry were the law of this

circuit, and the Trustees acknowledge both that the Coventry

rule has not been universally accepted and that it has not been

7 considered by the First Circuit, this case is materially

distinguishable from Coventry. While Dr. Isaacs did invite the

court to review his FAC, he did so in the alternative, and only

after asserting that he was entitled to amend his complaint as a

matter of course, under Rule 15(a)(1). Indeed, even in light of

Coventry, the court can see no basis for construing a pleading

captioned “Motion to Amend Complaint as a Matter of Course” as a

waiver of plaintiff’s right to amend his complaint as a matter

of course. In short, even if the Coventry rule were the law of

this circuit, it would not be an impediment to recognizing

plaintiff’s FAC as having been properly filed, as a matter of

course, pursuant to Rule 15(a)(1).

Finally, the Trustees have responded to plaintiff’s

alternative assertion that he would be entitled to amend his

complaint under Rule 15(a)(2). They argue that amendment would

be futile because the FAC fails to state a claim upon which

relief can be granted. As with the Board, the Trustees may, if

they chose to do so, file a motion to dismiss the FAC that

simply incorporates, by reference, the arguments they have

already advanced in their first motion to dismiss and their

objection to plaintiff’s motion to amend.

8 C. Dartmouth Hitchcock Medical Center

In his original complaint, plaintiff asserted six claims

against DHMC. He filed his motion to amend and his FAC

approximately three weeks before DHMC was obligated to respond

to the original complaint. DHMC does not challenge plaintiff’s

right to amend his complaint as a matter of course. Thus, as to

DHMC, the FAC is the operative complaint. Moreover, as DHMC’s

pending motion to dismiss was filed after plaintiff filed his

FAC, and expressly applies to the FAC, the court will rule on

DHMC’s motion to dismiss in due course.

II. Conclusion

For the reasons detailed above, plaintiff’s FAC is now the

operative complaint in this case as to all three defendants.

Because an amended complaint filed pursuant to Rule 15(a)(1)

requires no motion, plaintiff’s motion to amend, document no.

14, is denied as moot. In addition, the Board’s motion to

dismiss, document no. 7, and the Trustees’ motion to dismiss,

document no. 13, are both denied as moot, but without prejudice

to each defendant filing a motion to dismiss that incorporates

by reference the relevant arguments they have made in filings

that are already a part of the record.

9 SO ORDERED.

__________________________ Landya McCafferty United States District Judge

July 6, 2017

cc: John F. Skinner, III, Esq. Keith A. Mathews, Esq. Pierre A. Chabot, Esq. Seth M. Zoracki, Esq. William D. Pandolph, Esq.

10