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Ramos v. Poore

United States District Court, D. Connecticut

April 11, 2017

JOSE ERIC RAMOS, Plaintiff,
v.
COREY POORE, ET AL., Defendants.

          ORDER DISMISSING AMENDED COMPLAINT

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Plaintiff, Jose Eric Ramos, is currently confined at MacDougall-Walker Correctional Institution in Suffield, Connecticut (“MacDougall-Walker”). Mr. Ramos initially filed this action in the Connecticut Superior Court for the Judicial District of New London, asserting claims of excessive force, lack of speedy arraignment, and violations of the right to counsel and the right to remain silent against Defendants, Sergeant Corey Poore, Detectives James Curtis and H. Reams, Supervisor John Doe, and the Norwich Police Department.

         On April 9, 2015, Defendants removed the action from state court to this Court under 28 U.S.C. § 1446. See Notice of Removal, ECF No. 1. On April 20, 2016, Defendants moved for summary judgment. The Court has addressed the motion for summary judgment in a separate ruling.

         On November 29, 2016, Mr. Ramos filed an Amended Complaint without seeking leave of the Court. For the reasons set forth below, the Amended Complaint will be dismissed.

         The Amended Complaint filed by Mr. Ramos includes only Corey Poore in the title on the first page; however, it lists Judge McMahon and the “Chief State's Attorney” as new Defendants on pages two and three. It also includes a new claim directed to sufficiency of the affidavit that Detective Poore submitted in support of his request that a warrant be issued for Mr. Ramos's arrest in September 2012. The Amended Complaint does not include any facts in support of the claims that are asserted in the original Complaint.

         Federal Rule of Civil Procedure 15(a)(1) provides that a plaintiff may amend his complaint once as of right “within: (A) 21 days after serving [the complaint], or (B) if the pleading is one to which a responsive pleading is required, [within] 21 days after service of a responsive pleading or 21 days after service of a motion” to dismiss, a motion for a more definite statement or a motion to strike, “whichever is earlier.” The Federal Rules of Civil Procedure for the United States District Courts apply to an action after it has been removed to federal court from state court. See Rule 81(c)(1), Fed. R. Civ. P.

         A defendant who has removed a complaint to federal court must file an answer to the complaint within the time period set forth in Fed.R.Civ.P. 81(c)(2)(A)-(C). Thus, a complaint that has been removed to this Court is a pleading “to which a responsive pleading is required, ” suggesting that an amended complaint may be filed as of right within 21 days after service of a responsive pleading or a Rule 12 motion. See Rule 15(a)(1)(B), Fed.R.Civ.P. Here, however, Defendants did not file an answer to the original Complaint, nor did they file a motion to dismiss, a motion for a more definite statement or a motion to strike addressed to the Complaint. Instead, they filed a motion for summary judgment, which is not a “pleading” under Rule 15(a)(1)(B). See Rule 7(a), Fed.R.Civ.P. (defining pleadings as: “a complaint … an answer to a complaint … [and] if the court orders one, a reply to an answer”).

         The Defendants object to the Amended Complaint as failing to comply with Fed.R.Civ.P. Rule 15(a)(2). This rule requires that, in the event that a party is not permitted to file an amended pleading as of right, he or she must seek leave to file it or secure the consent of the opposing party to file it. See Id. Given that Defendants did not file either a responsive pleading or a Rule 12 motion addressed to the Complaint, it is unclear whether Mr. Ramos was required to seek leave or the consent of opposing counsel before filing an Amended Complaint in this matter. See Rule 15(a)(1)(B), Fed.R.Civ.P. (“a party may amend a pleading once as a matter of course . . . (B) if the pleading is one to which a responsive pleading is required, [within] 21 days after service of a responsive pleading or 21 days after service of a motion” to dismiss, a motion for a more definite statement or a motion to strike, ‘whichever is earlier'”).

         As of December 1, 2009, Federal Rule of Civil Procedure 15(a) was amended as set forth above regarding the time permitted to amend a pleading once as a matter of right. Before the 2009 revision to Rule 15(a), the amendment of a pleading before trial was permitted “ʻ(1) … once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.'” Yale Univ. v Konowaloff, Civil No. 3:09-CV-466 (AWT), 2010 WL 3925262, at *1 (D. Conn. Sept. 29, 2010) (quoting Rule 15(a)(1)(A) & (B), Fed.R.Civ.P. (effective December 1, 2007)). Otherwise, a party was only permitted to amend a pleading “with the opposing party's consent or [with] the court's leave.” Fed.R.Civ.P. 15(a)(2) (effective December 1, 2007).

         The 2009 revisions to Rule 15(a)(1)(A) & (B) leave some ambiguity regarding the timelines for filing an amended complaint when no responsive pleading or Rule 12 motion has been filed. Under the revised language of the rule, section (B) of Rule 15(a)(1) is clearly applicable to those pleadings to which a responsive pleading is required; however, it is unclear whether subsection (A), which permits amendment of a pleading as of right within “21 days after serving [the pleading], ” is only applicable to pleadings to which a response is not required.[1] See Rule 15(a)(1)(B), Fed. R. Civ. P.

         The case law interpreting these two sections of Rule 15(a)(1) is unsettled as to whether a plaintiff may amend a complaint as of right more than twenty-one days after service of the complaint under Rule 15(a)(1)(B) when the defendants fail to file a responsive pleading or Rule 12 motion. While the Second Circuit has not yet addressed this issue, there is some case law in this District suggesting that, based on the language of Rule 15(a)(1)(A), a plaintiff's ability to amend a complaint as of right expires after 21 days have passed following service of the original complaint, if the defendants have not filed an answer or Rule 12(b), (e) or (f) motion in response to the complaint. See Trustees of I.B.E.W. Local Union No. 488 Pension Fund v. Norland Elec., Inc., No. 3:11-CV-709 (CSH), 2013 WL 785333, at *2 (D. Conn. Mar. 1, 2013) (finding that pro se plaintiff's ability to amend complaint as of right expired where “21 days have elapsed since the service of Plaintiffs' Complaint on May 12, 2011, and Defendant has served no responsive pleading or motion under Rule 15(a)(1)(B)”) (citing Castro v. United Sec. Inc., No. 10 Civ. 6152 (LBS), 2011 WL 1532012, *1 (S.D.N.Y. April 18, 2011); 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure, § 1481 at 661-62 (3d ed. 2010)).

         Other circuits, however, view this issue differently. See, e.g., Swanigan v. City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (“Because no responsive pleading or motion to dismiss has been filed, the 21-day clock under Rule 15(a)(1)(B) never started and [plaintiff]

         retained the right to amend his complaint”); cf. Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“Since 2009, a plaintiff has the right to amend within twenty-one days of service of the complaint (15(a)(1)(A)), or within twenty-one days of service of a responsive pleading or service of a motion under Rule 12(b), (e), or (f), whichever comes first (15(a)(1)(B))”). In addition, research has revealed no cases addressing the particular facts of this case: i.e., no answer was filed to a complaint that was removed from state court and an amended complaint was filed without leave after the filing of a motion for summary judgment addressed to the original complaint.

         The Court concludes, however, that it need not determine, at this time, whether Mr. Ramos properly filed the Amended Complaint as of right or whether he should have sought leave to file the Amended Complaint. Under either scenario, the Amended Complaint is subject to dismissal for failure to state a claim upon which relief may be granted.

         As indicated above, the Amended Complaint asserts a completely new claim addressed to the sufficiency of the affidavit in support of the warrant for Mr. Ramos's arrest and also names new Defendants. The Amended Complaint includes no allegations related to the claims asserted in the original Complaint. In the Amended Complaint, Mr. Ramos alleges that on September 18, 2012, Detective Sergeant Poore submitted an affidavit in support of a warrant for his arrest. Mr. Ramos claims that this affidavit included false or inaccurate statements regarding the location of the gun that was allegedly used by Mr. Ramos to shoot the victim. Mr. Ramos states that, since the ...


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