1. Defendants removed the present action to this Court on December 11, 2018 (Notice of Removal, Doc. 1), and filed their motion to dismiss Plaintiff's original complaint on December 28, 2018 (Doc. 8). On January 10, 2019, the Clerk granted Plaintiff's consent motion for an extension of time to respond to Defendants' motion to dismiss (Consent Mot. for Extension of Time, Doc. 14). (Consent Order, Doc. 17.) The Consent Order extended Plaintiff's deadline to respond through and including January 25, 2019. (Id.) On January 25, 2019, Plaintiff filed its amended complaint. (Doc. 26.)
Pursuant to Federal Rule of Civil Procedure 15, Plaintiff lacked the authority to file the amended complaint: "A party may amend its pleading once as a matter of course within: (A) [twenty-one] days after serving it, or (B) if the pleading is one to which a responsive pleading is required, [twenty-one] days after service of a responsive pleading or [twenty-one] days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." FED. R. CIV. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Id. at 15(a)(2).
Plaintiff filed its amended complaint twenty-eight days after Defendants served their motion to dismiss. Although the Consent Order granted Plaintiff an extension of time to respond to Defendants' motion to dismiss, it neither extended Plaintiff's time to file an amended complaint as a matter of right nor granted leave to file an amended complaint. Further, the consent motion does not evidence Defendants' written consent to Plaintiff filing an amended complaint.
Nevertheless, the Court retroactively allows the amended complaint, and the amended complaint is deemed the operative complaint as of its filing date, January 25, 2019. First, "[t]he court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). Second, "[o]rdinarily, a party must be given at least one opportunity to amend before the district court dismisses the complaint." Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (per curiam). Third, Defendant did not object to the filing of the amended complaint. Accordingly, the Court excuses Plaintiff's failure to comply with the Federal Rules of Civil Procedure this time.
