Phillips v. Department of the Army ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION THOMAS ARMISTEAD PHILLIPS, ) ) Plaintiff, ) ) v. ) CIVIL ACTION 23-0140-WS-MU ) UNITED STATES OF AMERICA, et al., ) ) Defendants. ) ORDER The plaintiff has filed a motion for leave to amend the complaint. (Doc. 41). The private defendant (“EOM”) objects on the sole grounds of futility. (Doc. 45). “The futility threshold is akin to that for a motion to dismiss ….” Bill Salter Advertising, Inc. v. City of Brewton, 2007 WL 24099819 at *2 (S.D. Ala. 2007). The Court’s practice is to grant leave to amend when the opponent’s futility argument amounts effectively to a detailed motion to dismiss, leaving it to the opponent to then file a motion to dismiss the amended pleading. E.g., Sullivan v. Wells Fargo Bank, N.A., 418 F. Supp. 3d 939, 942 (S.D. Ala. 2019); Howard v. Bayrock Mortgage Corp., 2010 WL 2734649 at *1 (S.D. Ala. 2010). EOM’s objection falls in this category. Accordingly, the motion for leave to amend is granted. The plaintiff is ordered to file and serve his amended complaint on or before December 14, 2023. EOM’s pending motion for judgment on the pleadings, (Doc. 33), which is directed to the original complaint, is denied as moot. DONE and ORDERED this 7th day of December, 2023. s/ WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE