Hay v. Bank of America, National Association et al
Filing
31
ORDER denying Plaintiff's 15 Motion for Reconsideration. Signed by Judge Richard W. Story on 9/19/2013. (cem)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NAPHTALI “BILLY” HAY,
Plaintiff,
v.
BANK OF AMERICA,
NATIONAL ASSOCIATION and
U.S. BANK, N.A., Successor
Trustee to Bank of America, N.A.,
as Successor Trustee to LaSalle
Bank, N.A., as Trustee for the
Holders of the Merrill Lynch First
Franklin Mortgage Loan Trust,
Mortgage Loan Asset-Backed
Certificates Series 2007-Ff1,
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
1:12-CV-01596-RWS
Defendants.
ORDER
This case is before the Court on Plaintiff’s Motion for Reconsideration
(“Pl.’s MR”) [15].1 After reviewing the record, the Court enters the following
Order.
1
The Court notes that subsequent to the filing of the present motion, Plaintiff
filed a Motion to File a First Amended Complaint [17] which was denied [25] by
Magistrate Judge Anand.
AO 72A
(Rev.8/82)
Under the Local Rules of this Court, “[m]otions for reconsideration shall
not be filed as a matter of routine practice,” but rather, only when “absolutely
necessary.” N.D. Ga. L.R. 7.2(E). “Reconsideration is only ‘absolutely
necessary’ where there is: (1) newly discovered evidence; (2) an intervening
development or change in controlling law; or (3) a need to correct a clear error
of law or fact.” Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga.
2003).
Plaintiff argues that this Court clearly erred when it granted Defendants’
Motion to Strike Plaintiff’s Amended Complaint. (See generally, Pl.’s MR,
[15]; Order, [14] at 4-5.) Plaintiff maintains, “there is an absolute right to
amend once as a matter of law, without seeking leave of court to do so. . . .”
(Pl.’s MR, [15] ¶ 5.) Plaintiff cites Federal Rule of Civil Procedure (“Rule”)
15(a) in support of this proposition. However, Rule 15(a) does not confer an
absolute right to amend. It provides, before trial:
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
AO 72A
(Rev.8/82)
Fed. R. Civ. P. 15(a)(1) (emphasis added). “In all other cases, a party may
amend its pleading only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(2).
Plaintiff does not dispute that Defendants served their Motion to Dismiss
pursuant to Rule 12(b)(6) on August 15, 2012, or that he filed his Amended
Complaint 41 days later on September 25, 2012. (Order, [14] at 5.) He also
does not dispute that he failed to obtain Defendants’ consent or leave of court
before filing his Amended Complaint. (Id.) Therefore, under Rule 15(a), the
Court finds no error in granting Defendants’ Motion to Strike Plaintiff’s
Amended Complaint.
The only Eleventh Circuit case cited by Plaintiff in support of his motion
is Brewer-Giorgi v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir.
2000). (Pl.’s MR, [15] ¶ 2.) However, that case, abrogated by the United State
Supreme Court in Reed Elsevier, Inc. V. Muchnick, 559 U.S. 154 (2010),
involved the application of Rule 15(c). Brewer-Giorgi, 216 F.3d at 1285 (“We
find no error in the district court’s decision that an amendment would have been
futile because [Plaintiff’s] claim would be barred regardless of whether it
related back or not.”) Further, the Court finds nothing in Brewer-Giorgi’s brief
3
AO 72A
(Rev.8/82)
discussion of Rule 15(a) that precludes granting Defendants’ Motion to Strike
in this case.
Conclusion
The Court concludes that there was no clear error of law or fact in its
Order granting Defendants’ Motion to Strike Plaintiff’s Amended Complaint.
Therefore, Plaintiff’s Motion for Reconsideration [15] is DENIED.
SO ORDERED, this 19th
day of September, 2013.
________________________________
RICHARD W. STORY
United States District Judge
4
AO 72A
(Rev.8/82)
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