Two married former Jones Day associates suing for alleged paternity leave and other bias were too late to amend their allegations as of right because the firm moved to dismiss their original pleading in September 2019, a D.C. federal judge ruled.
The decision Thursday addressed the novel issue of whether a party’s right to amend a suit once without court permission or the opposing party’s consent is revived after a new complaint is filed with permission or consent. The US District Court for the District of Columbia’s rejection of Mark Savignac’s and Julia Sheketoff’s contention that it does blocks, for now, their Feb. 23 bid to file a third amended complaint in the August 2019 suit, which would have added further factual allegations and Jones Day partner Traci Lovitt as a defendant.
Jones Day opposed the move as a further play for media attention and a violation of the Federal Rules of Civil Procedure. Agreeing that allowing the couple to further amend the suit at this point without court permission or the firm’s consent would be procedurally improper, Judge Randolph D. Moss granted Jones Day’s motion to strike the proposed third amended complaint.
At issue was FRCP 15(a), which provides that a party can amend a pleading once as a matter of course within 21 days after suing or 21 days after the opposing party files an answer or moves to dismiss the suit. The rule also allows a party to amend a pleading at anytime with the opponent’s consent or the court’s permission, Moss said.
Those are “mutually exclusive” provisions, the judge said. He sided with the First and Seventh circuits and multiple other D.C. federal courts on an issue on which “there is some difference of opinion,” Moss said.
Jones Day was correct that the right to amend once as of course “is a use-it-or-lose-it proposition” tied strictly to the filing of the initial pleading and the opposing party’s initial response, the court said.
Savignac and Sheketoff amended the suit twice before, most recently on Jan. 19 with Jones Day’s consent, Moss said.
They were wrong that, because they hadn’t yet exercised their right to amend once as of course, they could still do so within 21 days after Jones Day answered that amended complaint, the judge said.
Savignac and Sheketoff represent themselves. Jones Day represents itself.
The case is Savignac v. Jones Day, D.D.C., No. 1:19-cv-02443, 5/12/22.