UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Brenda K. Taite

v. Civil No. 08-cv-258-SM

James B. Peake, Secretary,

Department of Veteran Affairs

O R D E R

Plaintiff Brenda K. Taite has moved to amend her complaint

(document no. 9). Defendant objects, contending the motion to

amend should be denied based on futility. 

Plaintiff is entitled once as a matter of course to amend

the complaint before a responsive pleading is filed. See Fed. R.

Civ. P. 15(a)(1)(A). Because defendant has not yet answered the

complaint but has filed a motion to dismiss, plaintiff could have

filed an amended complaint without seeking leave to do so from

the court. See id.; see also Fed. R. Civ. P. 12(b) (requiring

motions to dismiss under Rule 12(b) to be filed before the

responsive pleading is filed); Correa-Martinez v. ArrillagaBelendez, 903 F.2d 49, 59 (1st Cir. 1990) (explaining a Rule

12(b) motion to dismiss is not a responsive pleading). Defendant

argues that, despite plaintiff’s right to amend the complaint

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once before an answer is filed, because plaintiff sought leave to

amend, she opened the door to the court’s review of the proposed

amendment. Defendant cites Correa-Martinez, 903 F.2d at 59, in

support of this position. See Def.’s Obj. at 2 (document no.

10).

I am not persuaded that Correa-Martinez stands for the

proposition that plaintiff’s decision to seek leave to file her

Rule 15(a)(1)(A) amendment, rather than simply filing it, enables

the court to deny the amendment based on futility. In CorreaMartinez, the request to amend the complaint was “offhandedly

inserted . . . in [the plaintiff’s] opposition” to defendant’s

motion to dismiss. Id. at 59 n.9. The district court granted

defendant’s motion to dismiss without addressing the request to

amend. See id. at 51. Plaintiff did not file either an amended

complaint or a motion for leave to file an amended complaint, but

appealed the dismissal, arguing the district court had abused its

discretion by not granting the request to amend. In affirming

the dismissal, the court actually reviewed the suggested

amendments and recognized that they would have been futile. 

Given the plaintiff’s failure to fully present the issue to the

district court and the posture of the case, the court found that

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the district court had not abused its discretion in declining to

rule on the request to amend. See id. at 59 & n.9. 

By contrast, plaintiff here has timely and fully presented

her request to amend the complaint to the court. The federal

rule is explicit: “a party may amend its pleading once as a

matter of course before being served with a responsive pleading.” 

Fed. R. Civ. P. 15(a)(1)(A). “Even if the court will ultimately

dismiss a plaintiff’s claim, the plaintiff has the right to amend

at least once, especially after paying a partial filing fee.” 3

Moore’s Fed. Practice, § 15.10 (3rd ed. 2008) (citing authority). 

“The district court has no discretion to reject an amended

pleading filed before a responsive pleading is served, even if

the court considers the amendment futile.” Id. § 15.11 (citing

authority). 

While this authority is more than sufficient to direct my

decision, I also note that were I to deny plaintiff’s motion as

futile, it would result in her claim being dismissed. That

matter has not been referred to me, pursuant to 28 U.S.C. §

636(b)(1)(B), for a Report and Recommendation. The appropriate

course to follow is to allow plaintiff’s amendment to her

complaint, to treat defendant’s objection to the motion to amend

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as a motion to dismiss, and to treat plaintiff’s reply to

defendant’s objection as an objection to defendant’s motion to

dismiss. See Vitrano v. United States, __ F. Supp. 2d ___, 2008

WL 1752221, *2 (S.D.N.Y. Apr. 16, 2008) (allowing amendment to

complaint filed before responsive pleading filed and treating

objection thereto as a motion to dismiss the amended claims). 

Defendant’s objection/motion to dismiss (document no. 10) shall

be decided by Judge McAuliffe, the district court judge assigned

to this case. 

Accordingly, I grant plaintiff’s motion to amend the

complaint (document no. 9), and the amended complaint shall be

the controlling pleading in the case. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 9, 2009 

cc: Brenda K. Taite, pro se

 Seth R. Aframe, Esq.

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