IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANGELA DENISE NAILS, *

*

PLAINTIFF, * 1:06-CV-00737.WKW

*

vs. *

*

DOTHAN RESCUE MISSION, *

*

DEFENDANT. *

DEFENDANT S RESPONSE TO 

PLAINTIFF S MOTION FOR LEAVE TO AMEND

THE DEFENDANT, the Dothan Rescue Mission, moves the

Court to Strike or Deny the Plaintiff s Motion for Leave to

Amend  filed on December 18, 2006. In support of this

request, the Defendant states:

1. On November 1, 2006, the Court entered a

Scheduling Order setting forth a deadline to amend any

pleading for Tuesday, November 28, 2006. The Plaintiff did

not file her Motion for Leave to Amend  until December 18,

2006, some 20 days after the deadline passed.

2. On or about September 20, 2006, the Court entered

an Order stating, in relevant part:

Additionally, the court notes that plaintiff s

amended complaint was filed five days after

the deadline established by this court. While

the court will accept the amended complaint on

this occasion, plaintiff is advised that she

must comply precisely with the terms of any

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order entered by the court in this matter and

that, if she fails to comply with any future

order of the court, this action may be

dismissed.

3. The Plaintiff now seeks to amend her complaint

again after the deadline for such an amendment has passed

and despite the Court s clear warning that she must follow

orders precisely.

4. The Plaintiff apparently bases her Motion for

Leave to Amend  on Federal Rule of Civil Procedure 15(b).

Rule 15(b) concerns situations where issues that were not

raised by the pleadings are tried by the express or implied

consent of the parties. There have been no issues tried in

this case. Therefore, Rule 15(b) is not applicable and a

Motion based on this rule should be denied. 

5. Even if this Court decides that Rule 15(b) is

applicable, any amendments to the Plaintiff s Complaint

would prejudice the Defendant and add substantial burdens

and costs in defending this action. Pursuant to the

timeline given in this Court s Scheduling Order, the

Defendant deposed the Plaintiff on December 6, 2006. If the

Plaintiff is allowed to amend her Complaint and add issues

after the deadline for doing so has expired, the Defendant

will have to re-depose the Plaintiff and reissue discovery

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requests concerning the amendments. 

6. This Court s Scheduling Order of November 1, 2006,

sets the deadline for dispositive motions as January 29,

2007. The Defendant would not have sufficient time to

conduct discovery and another deposition concerning any

amendments before the January 29th deadline. This would

severely prejudice the Defendant and it could not present a

defense to all issues upon the merits in such a short time

frame. 

7. To the extent the Plaintiff s Motion for Leave to

Amend  is related to the Plaintiff s Amend Damages Amount 

the Defendant incorporates by reference its Motion to

Strike  filed with this Court on December 13th, in its

entirety. 

WHEREFORE the Defendant moves the Court TO STRIKE or TO

DENY the Plaintiff s Motion for Leave to Amend.  

HARDWICK, HAUSE, SEGREST & WALDING

BY: /s/ Kevin Walding 

Kevin Walding (WAL036)

Attorney for Defendant

Post Office Box 1469

Dothan, Alabama 36302

Phone (334)794-4144

Fax (334)671-9330

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BY: /s/Patrick B. Moody 

Patrick B. Moody (MOO110)

Attorney for Defendant

Post Office Box 1469

Dothan, Alabama 36302

Phone (334)794-4144

Fax (334)671-9330

CERTIFICATE OF SERVICE

I hereby certify that, this date, I have served a copy

of this document on the following individual(s) and/or

attorney(s) of record by placing same in the United States

Mail in a properly addressed envelope with prepaid postage.

Angela Denise Nails

342 South Saint Andrews Street

Apartment 808

Dothan, Alabama 36301

This the 21st day of December, 2006.

 /s/ Kevin Walding 

Of Counsel

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