McGee v. Potier ( 2023 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION AARON FRANK MCGEE CIVIL ACTION NO. 6:22-CV-05963 VERSUS JUDGE ROBERT R. SUMMERHAYS KEVIN POTIER ET AL MAGISTRATE JUDGE DAVID J. AYO ORDER Now before this Court is DEFENDANTS’ MOTION TO DISMISS pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Kevin Potier; Acadiana Movers, LLC; and All-American Transfer and Storage, Inc. (Rec. Doc. 5). Plaintiff Aaron Frank McGee opposes the motion1 and incorporates a motion for leave to amend the complaint. (Rec. Doc. 21). McGee’s request is mentioned several times throughout the “Memorandum in Opposition to Motion to Dismiss.” (Id. at ¶¶ 2, 10, 14, 15). Although this Court questions the efficacy of presenting a motion for leave to amend in such a manner,2 McGee’s motion is hereby GRANTED out of an abundance of caution. In keeping with the prevailing procedure in this and a majority of courts of appeal and district courts, Defendants’ motion is, accordingly, MOOT. See, e.g., Beroid v. LaFleur, Civ. Act. No. 21-cv-516, 2022 WL 396165 (Jan. 24, 2022) (adopted by 2022 WL 393630 (Feb. 8, 2022); Deshotel v. PayPal, Inc., Civ. Act. No. 1 McGee filed a motion for extension of time to reply to the Motion to Dismiss, (Rec. Doc. 19), on December 12, 2022, asking for an extension to respond until December 15, 2022, which the Court granted on December 13, 2022, (Rec. Doc. 20). The opposition was filed on December 16, 2022. (Rec. Doc. 21). As such, Defendants note that the opposition was one day late and argue that it should be stricken. The Court declines to do so. 2 This Court notes that, generally, motions for leave to file an amended complaint must be accompanied by the proposed amended pleading. Local Rule 7.6. 19-ev-0378, 2019 WL 4010992 (W.D. La. Aug. 22, 2019); Probado Technologies Corp. v. Smartnet, Inc., 2010 WL 918573, *1 (S.D. Tex. Mar. 12, 2010). It is further ORDERED that McGee may file his amended complaint on or before FRIDAY, JUNE 30, 2023. It is finally ORDERED that Defendants may renew their motion, if appropriate, after the filing of any amended complaint by McGee. Defendants may adopt the arguments contained in the first motion by reference and may supplement such arguments, if appropriate. Should Defendants file such renewed motion to dismiss, McGee shall file any desired opposition within FOURTEEN DAYS of such filing. Defendants mayfile any desired reply within TEN DAYS of the filing of any opposition by McGee. Signed at Lafayette, Louisiana on this 22nd day of June, 2023. UNITED STATES MAGISTRATE JUDGE