Opinion
3:08-CV-01323 (CSH).
November 20, 2008
ORDER
In the interests of judicial economy, the Court has examined the docket in this case and determined that it should act sua sponte to advance the progress of this litigation.
A motion to dismiss is not a responsive pleading for the purposes of Rule 15(a). See Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir. 1996) (in a similar posture, facing only a motion to dismiss for lack of jurisdiction and failure to state a claim, district court lacked discretion to reject an amended pleading under Rule 15(a)); see also Elfenbein v. Gulf W. Indus., Inc., 590 F.2d 445, 448 (2d Cir. 1978) ("[T]he law in this circuit is that a motion to dismiss is not a responsive pleading, and therefore the complaint may be amended without leave of the court.^.^.^." (citing Christophides v. Porco, 289 F.Supp. 403, 408 (S.D.N.Y. 1968) ("A motion to dismiss a complaint under Rule 12 is not a responsive pleading within the Rule permitting amendment as of right.")). Thus, until the defendant in this case files a responsive pleading, plaintiff Symphony Marketing Solutions, Inc. remains entitled to file one amended pleading as of right. Fed.R.Civ.P. 15(a)(1)(A).
It is therefore ORDERED that:
• Plaintiff's Motion For Leave To File Amended Complaint [doc. #9] is DENIED AS MOOT.
• Plaintiff's Proposed First Amended Complaint [doc. #9-2] is accepted but must be re-filed because it has not been signed or dated. See Fed.R.Civ.P. 11(a). Plaintiff must refile its first amended complaint, signed and dated in the appropriate places, within eleven (11) days, no later than December 1, 2008.
• Because the Court must accept the plaintiff's first amended complaint, defendant's Motion To Dismiss [doc. #8] is DENIED without prejudice.
• Defendant shall have twenty days from the date of service of the first amended complaint to file her response, which may include a renewal of her motion to dismiss if so advised.
It is SO ORDERED.