Hensley v. Redi-Med of Mandeville et al, No. 2:2009cv00047 - Document 12 (E.D. La. 2009)
Court Description: ORDER AND REASONS denying as moot 5 Motion to Dismiss and granting 11 Motion for Leave to File Amended Complaint. Signed by Judge Carl Barbier on 5/19/2009. (caa, )
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Hensley v. Redi-Med of Mandeville et al Doc. 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY HENSLEY CIVIL ACTION VERSUS NO: 09-47 REDI-MED OF MANDEVILLE, ET AL SECTION: “J” (4) ORDER AND REASONS Before the Court is the Defendants’ Motion to Dismiss Pursuant to FRCP 12(b)(1) and 12(b)(6) (Rec. Doc. 5) as well as Plaintiff’s Motion to Amend Complaint for Damages (Rec. Doc. 11). For the reasons below, Plaintiff’s Motion to Amend Complaint for Damages is GRANTED, and Defendant’s Motion to Dismiss is DENIED as moot. BACKGROUND Plaintiff filed suit seeking damages relating to a drug test administered by the Defendants in connection with a preemployment physical examination. The Defendants filed a motion to dismiss for failure to state a claim and lack of subject matter jurisdiction. The Defendants argue that the Court does not have diversity jurisdiction in this matter and that the Dockets.Justia.com plaintiff’s claims are prescribed. The Plaintiff has opposed the motion and also responded by filing a motion to amend his complaint, which amendment he claims addresses the issues raised in the motion to dismiss. DISCUSSION Federal Rule of Civil Procedure 15(a) provides that a party may amend its complaint once as a matter of course as long as the opposing party has not filed responsive pleadings. The Fifth Circuit has held that for the purposes of Rule 15(a) a motion to dismiss is not a responsive pleading. F.2d 1023, 1025 (5th Cir. 1979). McGruder v. Phelps, 608 Accordingly, even though the Plaintiff is seeking permission of the Court to amend his complaint, such permission is unnecessary, as Plaintiff may amend by right. Although the Defendants filed a reply memorandum addressing the claims asserted in the Plaintiff’s amended complaint, they also requested the opportunity to fully brief the allegations of the amended complaint. Accordingly, IT IS ORDERED that the Defendants’ Motion to Dismiss (Rec. Doc. 5) is DENIED as moot; IT IS FURTHER ORDERED that the Plaintiff’s Motion to Amend Complaint for Damages (Rec. Doc. 11) is GRANTED. 2 New Orleans, Louisiana this the 19th day of May, 2009. ____________________________ CARL J. BARBIER UNITED STATES DISTRICT JUDGE 3
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