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Fresh v. Diamond Development Investments, Inc.

United States District Court, N.D. Georgia, Atlanta Division

March 9, 2015

MICHAEL FRESH, Plaintiff,
v.
DIAMOND DEVELOPMENT INVESTMENTS, INC. d/b/a DIAMOND DAVE'S STEAKHOUSE, and DAVID ULMER, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant Diamond Development & Investments, Inc. ("Diamond") d/b/a Diamond Dave's Steakhouse's ("Diamond Dave's") and David Ulmer's ("Ulmer") Motion to Strike Amended Complaint [19] ("Motion to Strike"). Also before the Court is Plaintiff Michael Fresh's Motion for Leave to Amend Complaint and Add Defendant [20] ("Motion for Leave").

I. BACKGROUND

On August 9, 2013, Plaintiff filed his Complaint [1] ("Complaint") against Defendants, alleging that Plaintiff was employed by Defendants and Defendants failed to pay him overtime wages, in violation of Section 7 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207. Plaintiff alleged that Ulmer is Diamond's CEO and registered agent.

On November 18, 2013, Defendants filed their Motion to Dismiss for Insufficient Service [7] ("Motion to Dismiss"), asserting that Plaintiff failed to serve Defendants via personal service and instead only left a copy of the Complaint outside of Ulmer's residence. On August 15, 2014, the Court held an evidentiary hearing regarding Defendants' Motion to Dismiss, and concluded that Plaintiff had failed to satisfy his burden to show that there had been effective service of process. After the evidentiary hearing, Defendants agreed to waive service [14].

On August 20, 2014, Plaintiff filed his First Amended Complaint [15] ("Amended Complaint"), which added Restaurant Development, Inc. ("RDI") as a named defendant, alleging that Ulmer is the CEO of RDI and that Diamond, RDI, and Ulmer employed Plaintiff and that "Diamond Dave's restaurant is either owned by Diamond, RDI or some combination of the two companies." (Amended Complaint ¶ 25).

On October 15, 2014, Defendants filed their Answer [18] to Plaintiff's original Complaint. On October 20, 2014, Defendants filed their Motion to Strike, asserting that, because Plaintiff failed to file his Amended Complaint within twenty-one (21) days after the Motion to Dismiss was served, Plaintiff was required to obtain Defendants' consent or the Court's leave to file an amended complaint under Rule 15 of the Federal Rules of Civil Procedure. (Motion to Strike at 2). Defendants argue that RDI "would be unfairly prejudiced by being forced into this litigation and required to defend against the charges at this late date." (Id.). Plaintiff did not file a direct response in opposition to Defendants' Motion to Strike.

On October 28, 2014, Plaintiff filed his Motion to Amend. Plaintiff acknowledges that Rule 15 of the Federal Rules of Civil Procedure requires him to seek leave to file an amended complaint, and asserts that leave is warranted here. Plaintiff asserts that he seeks to amend his Complaint because he learned that Ulmer's other business, RDI, may have been his actual employer. (Motion to Amend at 3).

Defendants did not file an objection to Plaintiff's Motion to Amend.

II. DISCUSSION

A. Legal Standard

Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file one amended complaint as a matter of course, if the amended complaint is filed either within 21 days of service of the original complaint or within 21 days of the defendant's filing of a responsive pleading or Rule 12 motion to dismiss. See Fed.R.Civ.P. 15(a)(1). Amended complaints outside of these time limits may be filed only "with the opposing party's written consent or the court's leave." See Fed.R.Civ.P. 15(a)(2).

Rule 15 of the Federal Rules of Civil Procedure provides that "[t]he court should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). Absent "undue delay, bad faith, dilatory motive or undue prejudice, leave to amend is routinely granted." Forbus v. Sears Roebuck & Co., 30 F.3d ...


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