United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff William Thomas's Motion for
Leave to File Amended Complaint (Dkt. #39), Defendant Jason
Morris's (“Morris”) Motion to Dismiss (Dkt.
#20), Defendant Chris Materne's (“Materne”)
Motion to Dismiss (Dkt. #21), Defendant Jose Gallo's
(“Gallo”) Motion to Dismiss (Dkt. #22), and
Defendants Chad Cada (“Cada”), Doug Ritter
(“Ritter”), and Joshua Johnson's
(“Johnson”) Motion to Dismiss (Dkt. #25). After
reviewing the relevant pleadings and motions, the Court finds
that Plaintiff's motion for leave should be granted and
all of Defendants' motions to dismiss should be denied as
January 24, 2018, Plaintiff initiated suit against Defendants
alleging claims of illegal entry and seizure, false arrest
and imprisonment, in violation of the Fourth and Fourteenth
Amendments, assault, and intentional infliction of emotional
distress (Dkt. #1). On March 5, 2018, Defendant Morris,
Defendant Materne, Defendant Gallo, and Defendants Cada,
Ritter, and Johnson filed motions to dismiss (Dkt. #20; Dkt.
#21; Dkt. #22; Dkt. #25). On April 25, 2018, Plaintiff filed his
Motion for Leave to File Amended Complaint (Dkt. #39). On May
9, 2018, Defendants Morris, Materne, Gallo, Otto and Smith
filed a response (Dkt. #45). That same day, Defendants Cada,
Ritter, and Johnson also filed a response (Dkt. #46). On May
15, 2018, Plaintiff filed his reply (Dkt. #47). On May 22,
2018, Defendants Morris, Materne, Gallo, Otto and Smith filed
their sur-reply (Dkt. #48) and Defendants Cada, Ritter, and
Johnson filed their sur-reply (Dkt. #49).
15(a) of the Federal Rules of Civil Procedure provides that a
party may amend its pleading once without seeking leave of
court or the consent of the adverse party at any time before
a responsive pleading is served. Fed.R.Civ.P. 15(a). After a
responsive pleading is served, a party “may amend only
with the opposing party's written consent or the
court's leave.” Id. Rule 15(a) instructs
the court to “freely give leave when justice so
requires.” Id. The rule “evinces a bias
in favor of granting leave to amend.” Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.
2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines,
Inc., 283 F.3d 282, 286 (5th Cir. 2002)). But leave to
amend “is not automatic.” Matagorda Ventures,
Inc. v. Travelers Lloyds Ins. Co., 203 F.Supp.2d 704,
718 (S.D. Tex. 2000) (citing Dussouy v. Gulf Coast Inv.
Corp., 660 F.2d 594, 598 (5th Cir. 1981)). Whether to
allow amendment “lies within the sound discretion of
the district court.” Little v. Liquid Air
Corp., 952 F.2d 841, 845-46 (5th Cir. 1992). A district
court reviewing a motion to amend pleadings under Rule 15(a)
considers five factors: (1) undue delay; (2) bad faith or
dilatory motive; (3) repeated failure to cure deficiencies by
previous amendments; (4) undue prejudice to the opposing
party; and (5) futility of amendment. Smith v. EMC,
393 F.3d 590, 595 (5th Cir. 2004) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
reviewing Plaintiff s motion for leave, the responses, reply,
and sur-replies, the Court finds that granting leave is
appropriate in this case. As a result, the Court finds that
all pending motions to dismiss are now moot.
therefore ORDERED that Plaintiffs Motion for
Leave to File Amended Complaint (Dkt. #39) is hereby
GRANTED. As a result, Plaintiffs Amended
Complaint (Dkt. #41) is deemed filed as of April 25, 2018.
further ORDERED that Defendant Morris's
Motion to Dismiss (Dkt. #20), Defendant Materne's Motion
to Dismiss (Dkt. #21), Defendant Gallo's Motion to
Dismiss (Dkt. #22), and Defendants Cada, Ritter, and
Johnson's Motion to Dismiss (Dkt. #25) are hereby
DENIED as moot.
 On March 5, 2018, Defendants Scott
Otto (“Otto”) and Cory Smith
(“Smith”) each filed an answer, which included
motions to dismiss (Dkt. #23; Dkt. #24). Because Otto and
Smith did not file their motions in compliance with ...