Marshall v. City of Arnold

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

KEVIN MARSHALL, ) ) Plaintiff, ) ) vs. ) Case No. 4:23-cv-00807-MTS ) CITY OF ARNOLD, et al., ) ) Defendants. )

MEMORANDUM AND ORDER After Defendants filed Motions to Dismiss Plaintiff’s Complaint, see Docs. [12], [14], & [16], Plaintiff filed a First Amended Complaint as a matter of course. See Doc. [18]; see also Fed. R. Civ. P. 15(a)(1)(B). On August 23, 2023, Defendants timely filed Motions to Dismiss the First Amended Complaint. See Docs. [19], [21], & [23]. Plaintiffs’ time to respond to Defendants’ Motions to Dismiss the First Amended Complaint passed with no response from Plaintiff. The Court then ordered Plaintiff to show cause why the Court should not grant Defendants’ unopposed Motions and dismiss this action. Doc. [26]. In Response, Plaintiff’s Counsel asserted that “due to health problems with himself and his support staff,” Plaintiff’s Counsel failed to realize that Defendants filed the Motions to Dismiss the First Amended Complaint. Doc. [27].1 Plaintiff then sought leave to file another amended complaint, what would have been the third complaint filed in this action. Plaintiff’s motion to amend showed that, “[w]hatever

1 Since Defendants filed three separate Motions to Dismiss, and since every Motion to Dismiss was accompanied by a separately filed Memorandum in Support, Plaintiff’s Counsel received six separate notices. Plaintiff’s Counsel did not elaborate how his “health problems” caused him to miss six separate notices. salience the adage ‘third time’s a charm’ has in daily life, it is a poor” maxim for the amendment of his pleadings. See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2102 (2018) (Roberts, C.J., dissenting). That proposed complaint plainly did not address the

issues Defendants raised in their motions to dismiss. The Court called a status conference and warned Plaintiff that he had one more chance to address Defendants’ motions to dismiss. Doc. [31]. Plaintiff then filed yet another Motion for Leave to File an Amended Complaint, Doc. [34]. Defendants’ Response in Opposition points out that Plaintiff’s latest Motion for Leave failed to comply with Local Rule 4.07, which requires that “at the time any motion for leave to amend any pleading is filed,” the “amended pleading itself must be submitted” to the

Court. E.D. Mo. L.R. 4.07. Defendants also point out that it is unclear whether the City of Arnold Police Department remains a named Defendant in the proposed Amended Complaint. Doc. [36] at 2 n.1. Defendants also make compelling arguments as to why allowing Plaintiff to file his latest Amended Complaint would be futile. See Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (explaining futility in the context of a motion for leave to amend means the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure).

Despite Defendants’ Response pointing out what appear to be significant issues with Plaintiff’s latest proposed Amended Complaint, Plaintiff chose not to file a reply memorandum. While filing a reply memorandum generally is not required, see E.D. Mo. L.R. 4.01(C), the Court will require Plaintiff to file one in this instance to respond to the points raised in Defendants’ Response. Plaintiff’s Reply, of course, will be governed by Rule 11, meaning that, by submitting it, Plaintiff’s Counsel will be certifying that “the claims, defenses, and other legal contentions” within the Reply “are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b). Accordingly, IT IS HEREBY ORDERED that, consistent with this Memorandum and Order and no later than Monday, November 20, 2023, Plaintiff must file, under penalty of Rule 11 sanctions, a Reply Memorandum to his Motion for Leave to File an Amended Complaint, Doc. [34]. The failure to timely do so will result in the denial of Plaintiff’s Motion for Leave to File an Amended Complaint. Dated this 9th day of November 2023. (|) he Luh UNITED STATES DISTRICT JUDGE

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