IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARCIE SOFGE, )

)

Plaintiff, )

)

v. ) Civil Action No. 15-00047-N1

)

MODERN WOODMEN OF AMERICA )

and CORESOURCE, INC., )

)

Defendant. )

ORDER

The Plaintiff initiated this action in state court, alleging claims for breach of 

contract and bad faith arising from the denial of benefits under a health insurance 

policy issued by the Plaintiff’s employer, Defendant Modern Woodmen of America, 

and administered by Defendant CoreSource, Inc. On January 30, 2015, the 

Defendants removed the Plaintiff’s case to this Court, alleging subject matter 

jurisdiction under, inter alia, 28 U.S.C. § 1331. The Defendants argue that federal 

question jurisdiction is proper because the Plaintiff’s state law claims are 

 1 As the parties have been informed (see Docs. 2, 9), this case has been randomly assigned to 

the undersigned United States Magistrate Judge for all purposes, including trial, in 

accordance with the Court’s Standing Order No. 24 

(www.alsd.uscourts.gov/documents/forms/STDO24.pdf). Inasmuch as no party, to date, has 

returned to the Clerk of Court a Request for Reassignment to a United States District 

Judge, there presently exists implicit consent to the undersigned conducting all proceedings 

in this case. See Roell v. Withrow, 538 U.S. 580, 123 S. Ct. 1696, 1703, 155 L. Ed. 2d 775 

(2003) (“We think the better rule is to accept implied consent where, as here, the litigant or 

counsel was made aware of the need for consent and the right to refuse it, and still 

voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these 

circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of 

waiting for the outcome before denying the magistrate judge’s authority. Judicial efficiency 

is served; the Article III right is substantially honored.”).

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completely preempted under the Employee Retirement Income Security Act of 1974, 

29 U.S.C. § 1001 et seq. (“ERISA”) (See Doc. 1). Following removal, the Defendants 

filed a motion to dismiss the Plaintiff’s claims under Fed. R. Civ. P. 12(b)(6), which 

is also based on the argument that her state law claims are preempted by ERISA. 

(Doc. 6). The Plaintiff has since filed a motion to amend her complaint (Doc. 13), in 

which she seeks to drop her state law claims and instead assert claims for benefits 

due and breach of fiduciary duty under ERISA.

The Defendants’ Rule 12(b)(6) motion to dismiss was filed and served on the 

Plaintiff on February 6, 2015. (Doc. 6). The Plaintiff did not seek to amend her 

complaint until March 24, 2015 (Doc. 13), more than 21 days after service of the 

motion to dismiss. Thus, the Plaintiff cannot amend her complaint as a matter of 

course, see Fed. R. Civ. P. 15(a)(1)(B), and may only amend “with the opposing 

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to 

amend should be freely given when justice so requires. Id.

The Plaintiff admits she has not obtained consent from the opposing party. 

(See Doc. 113 at 2, ¶ 5 (“It is unknown whether the present Defendants have an 

objection to this motion...”)). Thus, the Court must determine whether justice 

requires granting leave to amend.

In Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962) 

the Supreme Court declared that trial courts have broad discretion in 

permitting or refusing to grant leave to amend. Id. at 182, 83 S. Ct. 

227. “In the absence of any apparent or declared reason—such as

undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party by virtue of allowance 

of the amendment, futility of amendment, etc.—the leave sought 

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should, as the rules require, be ‘freely given.’ ” Id.

Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006). See also 

Halliburton & Assocs., Inc. v. Henderson, Few & Co., 774 F.2d 441, 443 (11th Cir. 

1985) (“Although the decision whether to grant leave is within the discretion of the 

district court, the rule contemplates that leave shall be granted unless there is a 

substantial reason to deny it.”).

Upon consideration, the Court finds that, unless an opposing party can 

present a “substantial reason” otherwise, the Plaintiff’s motion to amend her 

complaint (Doc. 13) is due to be granted. Accordingly, it is ORDERED that any 

objection to the Plaintiff’s motion (Doc. 13) shall be filed on or before Wednesday, 

April 1, 2015. If no such objection is filed by that time, it is ORDERED that the 

motion (Doc. 13) is deemed GRANTED without further action by the Court, and 

Plaintiff shall file her proposed amended complaint (Doc. 13-1) attached to the 

motion as her operative complaint in this action on or before Friday, April 3, 2015, 

with responsive pleadings to the amended complaint to be filed within the time 

allowed by the Federal Rules of Civil Procedure.2

 2 The Plaintiff’s motion also asserts that she “voluntarily dismisses or consents to the 

dismissal of state law claims or damages only allowed under state law after [she] has filed 

the attached amended complaint and in the event that the Court grants th[e] motion.” (Doc. 

13 at 2). To the extent she is requesting that her state law claims be dismissed under Fed. 

R. Civ. P. 41(a)(2) if she is allowed to amend her complaint, such requested relief is 

DENIED as MOOT. See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 

2004) (“Rule 41 allows a plaintiff to dismiss all of his claims against a particular defendant; 

its text does not permit plaintiffs to pick and choose, dismissing only particular claims 

within an action. ‘A plaintiff wishing to eliminate particular claims or issues from the 

action should amend the complaint under Rule 15(a) rather than dismiss under Rule 41(a).’ ” 

(quoting 8 Moore's Federal Practice § 41.21[2], at 41–32)); Campbell v. Altec Indus., Inc., 

605 F.3d 839, 841 n.1 (11th Cir. 2010) (same); Pintando v. Miami-Dade Hous. Agency, 501 

F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (“As a general matter, ‘[a]n amended pleading 

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DONE and ORDERED this the 25th day of March 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 

 

supersedes the former pleading; the original pleading is abandoned by the amendment, and 

is no longer a part of the pleader's averments against his adversary.’ ” (quoting Dresdner 

Bank AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210, 

1215 (11th Cir. 2006) (citation and quotation omitted)).

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