Edward B Hubbuch V Mullooly Jeffrey Rooney Flynn Llp Et Al

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Automated Summary

Key Facts

Plaintiff Edward B. Hubbuch, proceeding pro se, filed a complaint alleging claims under the Fair Credit Reporting Act, Fair Debt Collection Practices Act, and New York General Business Law § 349 against defendants Mullooly, Jeffrey, Rooney & Flynn LLP and JP Morgan Chase Bank, N.A. After all three defendants moved to dismiss, plaintiff filed a First Amended Complaint on October 3, 2025, which was filed 56 days after the first motion to dismiss, exceeding the 21-day window for amending as of right. The court struck the FAC as improperly filed. Defendants must advise the Court by October 17, 2025, whether they consent to the proposed Second Amended Complaint or wish to oppose the motion, with those motions to dismiss denied as moot.

Issues

  • How to handle the pending motions to dismiss the original Complaint while a motion for leave to file a Second Amended Complaint is pending, whether by denying them as moot, considering the merits in light of the proposed amended complaint, or granting the motion to amend without prejudice to defendants' right to file fresh motions to dismiss.
  • Whether the plaintiff's First Amended Complaint was properly filed as a matter of right under Federal Rule of Civil Procedure 15(a)(2), given that the 21-day window to amend as of right expired after the first motion to dismiss was filed by defendant Gavlik on August 8, 2025, and closed on August 29, 2025, making the FAC filed on October 3, 2025, untimely.
  • Whether the court should strike the First Amended Complaint as improperly filed or treat it as a motion for leave to amend, particularly since the plaintiff has now moved for leave to file a Second Amended Complaint, effectively abandoning both the original Complaint and the FAC in favor of the proposed SAC.

Holdings

  • The First Amended Complaint at Dkt. 65 is stricken because it was filed outside the 21-day window for amending as of right. The motions to dismiss at Dkts. 27, 52, and 60 are denied as moot. Defendants must advise the Court by October 17, 2025 whether they consent to the proposed Second Amended Complaint or oppose the motion.
  • Defendants must advise the Court in writing by October 17, 2025 whether they consent to the filing of the proposed Second Amended Complaint at Dkt. 68-1 or wish to oppose plaintiff's motion for leave to file that pleading. If defendants consent, they will have 14 days to file answers or motions to dismiss the SAC. If they oppose, they will have 14 days to file briefs in opposition.
  • The court determined that the 21-day window to amend as of right expired on August 29, 2025, when defendant Gavlik filed her motion to dismiss. Plaintiff's First Amended Complaint was filed on October 3, 2025, which was beyond this window. Since plaintiff moved for leave to file a Second Amended Complaint, the FAC is stricken and the pending motions to dismiss are denied as moot.

Remedies

  • The pending motions to dismiss at Dkts. 27, 52, and 60 are denied as moot. Defendants must advise the Court by October 17, 2025 whether they consent to the proposed Second Amended Complaint or wish to oppose it.
  • The First Amended Complaint filed at Dkt. 65 is stricken because it was filed outside the 21-day window for amendment as of right. The motion to amend remains live pending defendants' response.

Legal Principles

Rule 15(a)(2) of the Federal Rules of Civil Procedure permits a plaintiff to amend a complaint once as a matter of course within 21 days after serving it, or 21 days after service of a responsive pleading or motion to dismiss. The 21-day periods are not cumulative; the window expires 21 days after the first motion to dismiss is filed. If a plaintiff moves for leave to amend while a motion to dismiss is pending, the court may deny the motion as moot, grant the amendment, or require defendants to consent to or oppose the amendment.

Precedent Name

  • Env't Sols. Assocs. Grp., LLC v. Conopoco, Inc.
  • CVR Energy, Inc. v. Wachtell, Lipton, Rosen & Katz
  • Hamzik v. Office for People with Developmental Disabilities
  • Elder v. McCarthy
  • Conforti v. Sunbelt Rentals, Inc.
  • Brown v. W. Valley Envtl. Servs., LLC
  • Pettaway v. Nat'l Recovery Sols., LLC
  • Mejia v. High Brew Coffee
  • Williams v. Black Ent. Television, Inc.
  • Shomo v. City of New York
  • Huber v. County of Erie

Cited Statute

  • New York General Business Law § 349
  • Fair Credit Reporting Act
  • Fair Debt Collection Practices Act

Judge Name

Barbara Moses

Passage Text

  • The 21-day window to amend once as a matter of right after service of a responsive pleading or service of a designated motion are not cumulative. The 21-day window opened on August 8, 2025, when defendant Gavlik filed her motion to dismiss, and closed on August 29, 2025.
  • For the reasons discussed above, the purported First Amended Complaint at Dkt. 65 is hereby STRICKEN, and the motions at Dkts. 27, 52, and 60 are hereby DENIED as moot. Defendants must advise the Court in writing, no later than October 17, 2025, whether they consent to the filing of the proposed Second Amended Complaint at Dkt. 68-1 or wish to oppose plaintiff's motion for leave to file that pleading.
  • Where, as here, a plaintiff moves for leave to amend his complaint while a motion to dismiss that complaint is pending, the district court has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the proposed amended complaint.