Virginia Lawyers Weekly VA Lawyers Weekly
Where a man alleging that he suffered adverse employment actions and retaliatory treatment as the result of his views and opinions regarding the safety of the COVID-19 vaccine moved to file an amended complaint, and it was not clear that the proposed amendments were clearly futile, the motion was granted.
Background
Samuel Sigoloff, a medical provider in the United States Army, filed his initial complaint in the District Court for the Northern District of Texas on Oct. 14, 2022. He brings claims under the Military Whistleblower Protection Act, his Fifth Amendment Right to Due Process, and the Administrative Procedure Act alleging that he suffered adverse employment actions and retaliatory treatment as the result of his views and opinions regarding the safety of the COVID-19 vaccine.
On Jan. 9, 2023, defendants filed a motion to dismiss the complaint with prejudice or, in the alternative, to transfer venue. In an order dated Feb. 21, 2023, the Texas court transferred the litigation to this district and denied without prejudice defendants’ motion to dismiss. Defendants then filed in this district a motion to dismiss the complaint with prejudice for failure to state a claim and lack of jurisdiction.
Plaintiff has now filed a motion seeking leave to file an amended complaint to add factual allegations, name an additional defendant and state an additional cause of action, among other minor changes.
Analysis
Plaintiff asserts that, pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), he is entitled to amend the complaint once as a matter of course within 21 days after defendants filed their motion to dismiss. Defendants assert that (1) the deadline for plaintiff to file an amended complaint as a matter of course was Jan. 30, 2023; 21 days after defendants filed their first motion to dismiss in the Northern District of Texas before the case was transferred to this court and (2) plaintiff’s proposed amendments are futile.
Rule 15(a)(1)(B) is not cumulative – i.e., the “time period for amending the complaint as a matter of course under 15(a)(1) began when Defendants filed their first motion to dismiss.” Here, the deadline for plaintiff to file an amended complaint under Rule 15(a)(1)(B) was Jan. 30, 2023; therefore, plaintiff is not entitled to file an amended complaint as a matter of course at this time.
The court, however, may grant plaintiff leave to amend the complaint pursuant to Rule 15(a)(2), which provides that the court “should freely give leave when justice so requires.” Here, there is no evidence of bad faith by plaintiff or that the proposed amendments would cause prejudice to defendants. This case was originally filed in October 2022; for efficiency, plaintiff could (and perhaps should) have filed the amended complaint sooner than three weeks after defendants filed their motion to dismiss in this court.
The court, however, notes the unique procedural posture of this case in which the District Court for the Northern District of Texas on its own ordered plaintiff–in response to defendants’ first motion to dismiss–to file expedited briefing solely on the issue of whether the case should be transferred, before it subsequently transferred the case to this court. Additionally, as no court has yet ruled on the merits of defendants’ substantive dismissal arguments, the court is unable, at this juncture, to conclude that plaintiff’s proposed amendments are clearly futile.
Plaintiff’s motion for leave to file an amended complaint granted.
Sigoloff v. Austin, Case No. 1:23-cv-00230, April 20, 2023. EDVA at Alexandria (Vaala). VLW 023-3-217. 4 pp.
