ORDER: The Court, sua sponte, strikes the plaintiff's First Amended Complaint (Dkt. No. 10) without prejudice as untimely under Rule 15(a)(1)(B). The plaintiff may seek¶

Grodman v. Texas Tech University Health Sciences Center, No. 5:23-cv-00210 (N.D. Tex.) · Dkt. 13 · 2023-11-29 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

Case 5:23-cv-00210-H

Document 13

Filed 11/29/23

Page 1 of 2

PageID 144

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
SCHYLER GRODMAN,
Plaintiff,
v.

No. 5:23-CV-210-H

TEXAS TECH UNIVERSITY HEALTH
SCIENCES CENTER,
Defendant.
ORDER
Before the Court is the plaintiff’s First Amended Complaint. Dkt. No. 10. Federal
Rule of Civil Procedure 15(a) allows a party to amend its pleading “once as a matter of
course within . . . 21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P.
15(a)(1)(B). Outside of that time window, “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). Because the
plaintiff has failed to comply with Rule 15(a), the Court sua sponte strikes the plaintiff’s First
Amended Complaint (Dkt. No. 10) as untimely.
The plaintiff filed his original complaint on September 7, 2023. Dkt. No. 1. On
October 4, Texas Tech University Health Sciences Center moved to dismiss some of the
plaintiff’s claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). Dkt. No. 5. The plaintiff’s initial deadline to respond was October 25
(Dkt. No. 6 at 1)—21 days after the filing and service of the motion to dismiss—but the
Court extended that deadline to November 22 (Dkt. Nos. 7; 9). On November 22, the
plaintiff filed a response to the motion to dismiss (Dkt. No. 11) and also filed his First
Amended Complaint (Dkt. No. 10).

Case 5:23-cv-00210-H

Document 13

Filed 11/29/23

Page 2 of 2

PageID 145

Rule 15(a)(1)(B) permits a plaintiff to amend his complaint within 21 days of service
of a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1)(B). By the Rule’s text, the plaintiff’s
opportunity to amend his complaint on his own accord expired 21 days after the motion to
dismiss was filed on October 25. See also Wright & Miller, Federal Practice & Procedure § 1480
(“When this time period expires or the party already has amended the pleading, [Rule
15(a)(1)(B) no longer applies and an amendment falls under Rule 15(a)(2), which requires
leave of court or the written consent of the opposing party.”). Because the Court did not
grant leave for him to amend his complaint and because the plaintiff gives no indication that
the defendants consented to its filing, the amendment is not permitted by Rule 15.
Accordingly, the Court, sua sponte, strikes the plaintiff’s First Amended Complaint
(Dkt. No. 10) without prejudice as untimely under Rule 15(a)(1)(B). The plaintiff may seek
to amend his complaint but must comply with the requirements of Rule 15.
So ordered on November 29, 2023.

JAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE

–2–