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Dudla v. P.M. Veglio, LLC

United States District Court, N.D. New York

February 28, 2014



LAWRENCE E. KAHN, District Judge.


In this breach of contract action, Defendants have moved to dismiss the Complaint for, inter alia, lack of subject matter jurisdiction. Dkt. Nos. 9 ("Motion to Dismiss"); 1 ("Complaint"). Pro se Plaintiff Shawn Dudla d/b/a/Nu Visions Enterprises[1] ("Plaintiff") has filed an Amended Complaint and cross-moved for permission to do so. Dkt. Nos. 11 ("Amended Complaint"); 12 ("Motion to Amend"). For the following reasons, the Motion to Dismiss is denied as moot, the Motion to Amend is granted in part, and, in order to ensure that subject matter jurisdiction exists, Defendant Guilio Veglio ("Veglio") is ordered to provide an affidavit regarding his domicile as of the commencement of this action.


The parties are presumed to be familiar with the background of this case. For a complete statement of Plaintiff's allegations and claims, reference is made to the Amended Complaint. Plaintiff commenced this action by filing the Complaint on March 25, 2013. On June 20, 2013, Defendants filed the Motion to Dismiss, in which they sought dismissal based on, inter alia, Plaintiff's failure to adequately allege diversity jurisdiction. Mot.; Dkt. No. 9-1 ("Memorandum"). On July 17, 2013, Plaintiff filed the Motion to Amend, a copy of the Proposed Amended Complaint, and a supporting Affidavit. Mot. to Amend; Dkt. No. 12-1 at 1-23[2] ("Affidavit"); 42-81 ("Proposed Amended Complaint"). That same day, he separately filed the unsigned Amended Complaint. Defendants then filed a Letter noting that, although they did not consent to the Motion to Amend, they had not filed an opposition because Plaintiff had not complied with the Local Rules. Dkt. No. 15 ("Letter").


Pursuant to Federal Rule of Civil Procedure Rule 15(a)(1), a party may amend her pleading as a matter of course within 21 days of service of a Rule 12(b) motion to dismiss.[3] Amendment is effective upon receipt of the amended pleading by the clerk. See Obot v. I.R.S., No. 12-CV-01053, 2013 WL 6490256, at *4 (W.D.N.Y. Sept. 26, 2013) (noting that Rule 15 provides for a twenty-one day period for the "fil[ing]" of an amended pleading); S.S. Dweck & Sons, Inc. v. Hasbani, No. 12 Civ. 6548, 2013 WL 3963603, at *3 (S.D.N.Y. Aug. 1, 2013) (same); Trzeciak v. State Farm Fire & Cas. Co., No. 10-CV-358, 2011 WL 831126, at *2 n.1 (N.D. Ind. Mar. 1, 2011) (deeming amended complaint filed on day it was docketed); FED R. CIV. P. 5(d)(2) (noting that a "paper is filed by delivering it... to the clerk"). Service of a motion by mail is effective on the date of mailing. FED. R. CIV. P. 5(b)(2)(C). The deadlines for a party upon whom service is made by mail are extended by three days. Id . 6(d). A deadline that falls on a weekend day is extended until the following Monday. Id . 6(a)(1)(C).

Defendants mailed the Motion to Dismiss to Plaintiff on June 20, 2013. See Mot. Plaintiff had twenty-four days thereafter to amend the Complaint as a matter of course. See Davis v. U.S. Bank Nat. Ass'n, No. 10-13394, 2011 WL 281040, at *3 (E.D. Mich. 2011). Because the deadline fell on July 14, 2013, a Sunday, Plaintiff had until the following day to amend his complaint. Although Plaintiff mailed the Amended Complaint on July 15, 2013, see Aff. ¶ 7, it was not received for filing until two days later, see Am. Compl. at 1, after the expiration of the matter-of-course period.

However, Federal Rule of Civil Procedure 6(b) provides that even already passed deadlines may be extended by motion where a movant demonstrates "excusable neglect." This applies to extension of the Rule 15(a)(1) period for amending as a matter of course. See Hayes v. District of Columbia , 275 F.R.D. 343 (D.D.C. 2011); FED R. CIV. P. 6(b)(2) (barring extensions of deadlines under certain non-Rule 15 rules). In accordance with the duty to construe pro se filings liberally, see Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008), the Court construes Plaintiff's Affidavit-in which he argues that the Amended Complaint constitutes an amendment as of course because he mailed it within twenty-one days of receiving the Motion to Dismiss-as a motion to extend the deadline for amending as of course. See Aff. ¶¶ 3-8; Hayes , 275 F.R.D. at 346 (construing motion for reconsideration as a motion to retroactively extend the amendment-as-of-course deadline).

To determine whether a late filing is the result of excusable neglect, a district court should consider: (1) the danger of prejudice to the other party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Tancredi v. Metro. Life Ins. Co. , 378 F.3d 220, 228 (2d Cir. 2004). "[E]xcusable neglect is an elastic concept, that is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id.

Plaintiff's late filing was the result of excusable neglect. Defendants have raised no substantive issues regarding the Amended Complaint, see Letter, and thus have not demonstrated any prejudice from its filing. The Amended Complaint was filed a mere two days after the deadline; this delay has had a negligible impact, if any, on the proceedings. The delay was the result of pro se Plaintiff's incomplete understanding of a number of complex, interrelated civil procedure rules and their judicial interpretations-including one principle, that a pleading is amended under Rule 15(a)(1) when it is filed, that is not made explicit by the Federal Rules of Civil Procedure and has not received extensive judicial discussion. Cf. Canfield v. Van Atta Buick/GMC Truck, Inc. , 127 F.3d 248, 250 (2d Cir. 1997) ("[N]eglect may be excusable where the language of a rule is ambiguous or susceptible to multiple interpretations."). And, as there is no indication that Plaintiff's delay was the result of anything other than this misunderstanding, Plaintiff acted in good faith. Thus, the Court grants Plaintiff a retroactive two-day extension of the Rule 15(a)(1) deadline for filing an amendment as of course. The Amended Complaint therefore constitutes an amendment as of course and becomes the operative pleading in this matter. The Motion to Dismiss, which sought dismissal of the Complaint, is denied as moot. See Kolari v. New York-Presbyterian Hosp. , 455 F.3d 118, 120 n.2 (2d Cir. 2006).

However, the Amended Complaint is unsigned. See Am. Compl. at 40. Federal Rule of Civil Procedure 11(a) provides that "[e]very pleading, written motion, and other paper must be signed... by a party personally if the party is unrepresented."[4] Additionally, a court "must strike an unsigned paper unless the omission is promptly corrected after being called to the... party's attention." Id . Plaintiff is therefore given 21 days to file a signed copy of the Amended Complaint. Upon filing, the signed Amended Complaint will replace the Amended Complaint as Docket Number 11.


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