Zaidi v. Ehrlich
| Decision Date | 09 May 1984 |
| Docket Number | No. 83-2726,83-2726 |
| Citation | 732 F.2d 1218 |
| Parties | Maryam Jamilah ZAIDI, Plaintiff-Appellant, v. Harriet Joan EHRLICH, et al., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Maryam Jamilah Zaidi, pro se.
Javier Aguilar, C.J. (Neil) Calnan, James R. Gough, Asst. U.S. Attys., Houston, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before RUBIN, JOLLY and DAVIS, Circuit Judges.
Maryam Jamilah Zaidi sued four employees of the Equal Employment Opportunity Commission in Texas state court seeking judgment against them individually for intentional and grossly negligent infliction of emotional distress, wrongful discharge, and damage to professional reputation. The defendants removed the action to the United States District Court for the Southern District of Texas pursuant to 28 U.S.C. Secs. 1441, 1442, and 1446(b). They then sought, and received, an extension of time within which to file an answer, but, rather than filing an answer, they filed a motion to dismiss or, in the alternative, for summary judgment. They attached to the motion four affidavits and numerous exhibits. The affidavits contained factual statements that, if true, would establish that Zaidi was fired for insubordination, thereby defeating her claim.
Zaidi, who is a licensed Texas attorney appearing pro se, did not file any formal opposition to the motion and did not file any countervailing affidavits. She did, however, file a motion for leave to amend her complaint. She initially attempted to file this motion ten days after the defendants moved for summary judgment, but the motion was returned to her for noncompliance with a local rule requiring her to state in the motion that she had discussed the motion with opposing counsel. Three days later, the defendants opposed Zaidi's attempt to amend her complaint, arguing that Zaidi failed to particularize her proposed amendment and that she was merely trying to delay the action. About two weeks later, Zaidi successfully filed a motion for leave to amend her complaint, along with a memorandum of legal authorities. In this memorandum, she described two additional claims she proposed to raise, and challenged the sufficiency of the defendants' evidence to support summary judgment against her.
The district court refused to review Zaidi's motion for leave to amend her complaint because she had failed to attach a copy of the proposed amended complaint to her motion. Finding that the defendants' uncontroverted affidavits "clearly show the actions they took regarding [Zaidi] were proper," the court entered summary judgment for the defendants.
Federal Rule of Civil Procedure 15(a) provides "a party may amend his pleading once as a matter of course at any time before a responsive pleading is served." The term "responsive pleading" should be defined by reference to the definition of "pleading" in Rule 7(a), which includes neither a motion to dismiss nor a motion for summary judgment. Fed.R.Civ.P. 7(a); 3 Moore's Federal Practice p 15.07, at 15-45; 6 C. Wright A. Miller, Federal Practice and Procedure Sec. 1483, at 411-12 (1971). Accordingly, neither a motion to dismiss nor a motion for summary judgment extinguishes a plaintiff's right to amend a complaint. McClellan v. Mississippi Power and Light Co., 526 F.2d 870, 872 n. 2 (5th Cir.1976), modified on other grounds, 545 F.2d 919 (5th Cir.1977) (en banc) (motion to dismiss); LaBatt v. Twomey, 513 F.2d 641, 650 (7th Cir.1975) (); Miller v. American Export Lines, Inc., 313 F.2d 218 (2d Cir.1963) ().
Zaidi had not previously amended her complaint. Therefore, she had a right to amend at the time the district court entered summary judgment. When, as in this case, a plaintiff who has a right to amend nevertheless petitions the court for leave to amend, the court should grant the petition. Rogers v. Girard Trust Co., 159 F.2d 239 (6th Cir.1947); accord, Kirk v. United States, 232 F.2d 763 (9th Cir.1956).
While Zaidi should have attached a copy of her proposed complaint to her motion, her failure to do so should not have been permitted to defeat her right to amend. She made clear the substance of her proposed amendment, for, in her supporting memorandum, Zaidi explained that she intended to add a "federal tort claim," which had recently been denied at the administrative level, and "a number of...
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Scott v. Henrich
...hold a motion for summary judgment in abeyance pending submission of the opposing party's proposed amended pleading. See, Zaidi v. Ehrlich, 732 F.2d 1218 (5th Cir.1984). Cognizant of the nature of the amendment to the complaint which Scott seeks, the court is convinced the interests of just......
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