United States District Court, E.D. New York
November 12, 2004.
ANN READE-ALVAREZ, on behalf of herself and all others similarly situated, Plaintiff,
ELTMAN, ELTMAN & COOPER, P.C. and "John Eltman," "John Eltman," and "John Cooper," Individuals, Defendants.
The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
MEMORANDUM AND ORDER
By order to show cause dated October 22, 2004, Plaintiff Ann
Reade-Alvarez ("Plaintiff'), who filed a putative class action
complaint ("Complaint") against defendants Eltman, Eltman &
Cooper, P.C. ("EEC") and various individuals working for that
firm (collectively, "Defendants") under the Fair Debt Collection
Practices Act, moves the Court for, inter alia, the following
relief: (a) leave to amend the Complaint to add additional
parties; (b) the striking of Defendants' pending motion to
dismiss the Complaint; and (c) the right to inspect, photograph
and videotape the premises of EEC and non-party Erin Capital
Management, LLC ("Erin"). For the reasons set forth below, the
Court finds that Plaintiff is entitled to amend the Complaint as
a matter of right pursuant to Fed.R. Civ. P. 15(a), and denies
Plaintiff's application for inspection under Fed.R. Civ. P. 34. DISCUSSION
I. "Motion" to Amend Complaint
Apparently based on his understanding that Plaintiff needs the
consent of the Court to amend the Complaint under Fed.R. Civ. P.
15(a) to add an additional plaintiff and several new defendants,
Plaintiff's counsel filed this application. Based upon that same
misunderstanding, Defendants opposed the application. The Court
finds that their "understanding" is flawed.
Fed.R. Civ. P. 15(a) states that a "party may amend" its
"pleading once as a matter of course at any time before a
responsive pleading is served . . ." This rule expressly grants a
plaintiff the opportunity to amend a complaint once, as a matter
of right, provided that the defendants have not served a
"responsive pleading." The Second Circuit has consistently held
that a motion to dismiss under Fed.R. Civ. P. 12(b)(6) is not a
"responsive pleading" under Fed.R. Civ. P. 15(a).*fn1
See, e.g., Barbara v. New York Stock Exchange, Inc.,
99 F.3d 49, 56 (2d Cir. 1996) (citing 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1483, at 584-85 (2d ed. 1990));
see also Krasner v. Episcopal Diocese of Long Island,
328 F. Supp. 2d 367, 371 (E.D.N.Y. 2004) (Rule 15(a) "permits a party
to amend their pleading once as a matter of course at any time
before a responsive pleading is served" and because a motion to
dismiss is not a responsive pleading, "plaintiff's cross-motion
for permission to amend the complaint is unnecessary").
Defendants have not as yet filed an answer to the Complaint, but
rather moved to dismiss the Complaint pursuant to Fed.R. Civ. P.
12(b)(6), the motion which is pending before the Court. Therefore, Plaintiff was not
required to seek leave of the Court to amend the Complaint.
Without offering any authority in support, Defendants' counsel
represented to the Court during the November 10, 2004 telephone
hearing that because Plaintiff was seeking to add additional
parties in her proposed amended complaint, leave of Court was
necessary under Fed.R. Civ. P. 15(a). However, the Second
Circuit has decided that issue differently and in accord with the
plain meaning of Rule 15(a), and therefore the Plaintiff's
application is superfluous. See Washington v. New York City
Bd. of Estimate, 709 F.2d 792, 796-97 (2d Cir. 1983), cert.
denied, 464 U.S. 1013 (1983).*fn2
II. Motion for Inspection under Fed.R. Civ. P. 34
Contending that defendant EEC and non-party Erin are really one
party, and that Erin is engaged in the unauthorized practice of
law, Plaintiff seeks an order allowing her to "inspect,
photograph and videotape" EEC's and Erin's premises. Pursuant to
Fed.R. Civ. P. 34(a)(2), a party may serve a discovery request
"to permit entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection. . . ." Here, Plaintiff has
not provided any support for her position that she needs to
inspect EEC's law office and Erin's business office immediately because, for example, she alleges that these entities
are intending to destroy "evidence" and will destroy "evidence"
absent issuance of an order pursuant to Fed.R. Civ. P. 34.
Plaintiff will be entitled to obtain the discovery she seeks in
due course under the Federal Rules of Civil Procedure provided
that her amended complaint is legally sufficient under
Fed.R.Civ. P. 12. See, e.g., 8A Wright, Miller & Kane, Federal
Practice and Procedure § 2214 (2d ed. 1990) (on motion to compel
inspection "discovery may be deferred until it has been ruled or
conceded that plaintiff has stated a claim on which relief can be
granted"). The Court therefore denies this portion of Plaintiff's
For the foregoing reasons, Plaintiff is directed to file her
amended complaint, if any, within ten days after her counsel's
receipt of this order. Upon Plaintiff's filing of the amended
complaint, Defendants' pending motion to dismiss the original
complaint pursuant to Fed.R. Civ. P. 12(b)(6) shall be deemed
moot and therefore stricken.*fn3 Plaintiff's application for
an order to inspect, photograph and videotape the offices of Eltman, Eltman & Cooper and non-party Erin Management, LLC
pursuant to Fed.R. Civ. P. 34 is denied.