IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRIAN A. DEKLE, et al., )

 )

Plaintiffs, )

)

v. ) CIVIL ACTION 15-0069-WS-C

 )

GLOBAL DIGITAL SOLUTIONS, )

INC., et al., )

 )

Defendants. )

ORDER

This matter comes before the Court on plaintiffs’ Motion for Leave to Add Richard J. 

Sullivan as an Additional Party Defendant (doc. 10).

On February 9, 2015, defendants, Global Digital Solutions, Inc. (“GDSI”), and North 

American Custom Specialty Vehicles, Inc. (“NACSV”), filed a Notice of Removal (doc. 1), 

removing this action to this District Court from the Circuit Court of Baldwin County, Alabama.1 

One week later, on February 16, 2015, GDSI and NACSV jointly filed a Motion to Dismiss or 

Alternatively, for Transfer of Venue (doc. 5), raising various arguments and defenses. The court 

file confirms that defendants filed neither an answer nor any other Rule 12(b) motion prior to 

their Motion to Dismiss filed on February 16, 2015. That Motion to Dismiss remains pending at 

this time, subject to a briefing schedule (doc. 7) under which it is to become ripe on March 13, 

2015.

On March 2, 2015, plaintiffs, Brian A. Dekle and John Ramsay, filed a First Amended 

Complaint (doc. 9), through which they purported to clarify the particular claims and causes of 

action asserted, as well as to name Richard J. Sullivan as an additional party defendant. The 

 1 Federal subject matter jurisdiction appears to have been properly invoked 

pursuant to the diversity provisions of 28 U.S.C. § 1332, inasmuch as it appears that there is 

complete diversity of citizenship between plaintiffs and defendants, and that the amount in 

controversy exceeds by a wide margin the $75,000 jurisdictional threshold.

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Court finds that plaintiffs have properly invoked Rule 15(a)(1), Fed.R.Civ.P., to amend their 

pleading as a matter of course without leave of court, inasmuch as (i) Dekle and Ramsay had not 

previously amended their Complaint, and (ii) their amendment was filed within 21 days after 

defendants served their Rule 12(b) motion, and is therefore timely under Rule 15(a)(1)(B). As 

the First Amended Complaint was properly filed, plaintiffs’ original Complaint (see doc. 3, Exh. 

1) has been superseded, with the First Amended Complaint now being the operative pleading.

Contemporaneously with the First Amended Complaint, in what appears to be a “belt and 

suspenders” maneuver, plaintiffs also filed a “Motion for Leave to Add Richard J. Sullivan as an 

Additional Party Defendant” (doc. 10). In that Motion, the First Amended Complaint and the 

accompanying Brief (doc. 11), Dekle and Ramsay explain that some courts have required

plaintiffs seeking to name additional defendants to obtain leave of court under Rule 21 even 

when the amended pleading is being filed as of right under Rule 15. The Court appreciates 

plaintiffs’ desire to proceed in an abundance of caution to be sure that the new defendant is 

properly named and joined. That said, the Court finds that the Motion for Leave was 

unnecessary, as Dekle and Ramsay properly effectuated Sullivan’s joinder as a party defendant 

through their First Amended Complaint, which they filed as a matter of course under Rule 

15(a)(1). While authorities are not unanimous, the prevailing (and better reasoned) view is that 

leave of court is not needed to add a new defendant under these circumstances. See, e.g., 

McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 872-73 (5th Cir. 1976) (concluding 

that Rule 15 takes precedence over Rule 21 if a plaintiff attempts to add parties by an amended 

pleading filed as of right, because “[a]rguably Rule 15 is the more specific rule” and “the court 

should not have to be concerned with passing on amendments at an early stage when there is 

little likelihood of prejudice to other parties”), vacated in part on other grounds, 545 F.2d 919 

(5th Cir. 1977).2 Because Dekle and Ramsay properly filed their First Amended Complaint as a 

 2 See also Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010) (“while some courts 

have concluded that Rule 15(a) does not apply to amendments seeking to add parties, ... most 

courts, including this one, have concluded otherwise”) (citations omitted); U.S. ex rel. Precision 

Co. v. Koch Industries, Inc., 31 F.3d 1015, 1018-19 (10th Cir. 1994) (“To the extent that 

Plaintiffs’ motion to supplement sought the addition of a party, it is controlled by Rule 15(a) 

because it is actually a motion to amend.”) (citations omitted); Washington v. New York City Bd. 

of Estimate, 709 F.2d 792, 795 (2nd Cir. 1983) (determining that plaintiff was entitled to amend 

complaint as a matter of right to name two additional defendants, because existing defendant had 

(Continued)

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matter of course within the parameters of Rule 15(a)(1), Richard Sullivan has been properly 

joined as a defendant herein, without the need for plaintiffs to obtain prior leave of court. 

Accordingly, the Motion for Leave to Add Richard J. Sullivan as an Additional Party Defendant 

(doc. 10) is moot. 

Now that the Complaint has been amended, circumstances have changed with regard to 

the pending Motion to Dismiss or for Transfer of Venue (doc. 5) filed by defendants GDSI and 

NACSV. That Motion relates to a now-superseded iteration of plaintiffs’ Complaint. In light of 

this development, it is unclear whether these defendants wish to continue to assert all of their 

previously stated grounds for dismissal, whether they wish to revise or supplement those 

arguments, whether they wish to abandon some or all of those arguments, and the like. At best, 

it would be unwieldy and inefficient for this Court to endeavor to synchronize a partially-briefed 

Rule 12(b) motion with a complaint that may have changed in material respects during the 

course of that briefing. Without hearing anew from the parties, the undersigned would be unable 

to discern which arguments the litigants might still wish to advance, how the arguments for or 

against dismissal might be modified by virtue of plaintiffs’ amendment to their pleading, or what 

new arguments the parties might wish to raise in relation to the amended pleading. 

In light of these circumstances (and without expressing any opinion as to the merits of the 

Motion to Dismiss or its continued viability with respect to the Amended Complaint), the Court 

deems the pending Motion to Dismiss or for Transfer of Venue (doc. 5) moot because it relates 

to a pleading that is now devoid of any legal force or effect. Defendants GDSI and NACSV 

must file their answer or Rule 12(b) Motion in response to the Amended Complaint or before 

March 17, 2015. Should these defendants renew their Motion to Dismiss, they should reproduce 

in full any arguments they wish to carry over from their prior Rule 12(b) Motion. In this manner, 

briefing on any renewed Motion to Dismiss will be self-contained, without obliging the Court or 

 

not yet answered complaint and plaintiff had not previously amended his pleading); Pretty Punch 

Shoppettes, Inc. v. Creative Wonders, Inc., 750 F. Supp. 487, 493 (M.D. Fla. 1990) (similar); 6 

Charles Alan Wright et al., Federal Practice & Procedure § 1479 (3d. ed.) (“any attempt to 

change parties by amendment before the time to amend as of course has expired should be 

governed by Rule 15(a)(1) and may be made without leave of court”).

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opposing counsel to refer back to previous briefs relating to the now-moot original Motion to 

Dismiss.

DONE and ORDERED this 3rd day of March, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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