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Strawser v. State

United States District Court, S.D. Alabama, Southern Division

November 20, 2014

JAMES N. STRAWSER and JOHN E. HUMPHREY, Plaintiffs,
v.
STATE OF ALABAMA, Defendant.

REPORT AND RECOMMENDATION

WILLIAM E. CASSADY, Magistrate Judge.

This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the motion to dismiss (Doc. 8), the pro se plaintiffs' motion to amend the complaint (Doc. 12), and the defendant's reply in support of motion to dismiss and in response to plaintiffs' motion to amend (Doc. 13).

As suggested by the Court ( see Doc. 11, at 1-2 ("The Court notifies the pro se plaintiffs that rather than filing a substantive response in opposition to the defendant's motion to dismiss, they may well desire to respond by filing a motion to amend their complaint to dismiss the State of Alabama and substitute as the proper defendant in this case the actual movant with respect to the pending motion, that is, Luther Strange, in his official capacity as Attorney General of the State of Alabama." (footnotes omitted)), the pro se plaintiffs timely filed a motion to amend their complaint "to dismiss the State of Alabama as defendant in this case and substitute as the proper defendant Luther Strange, in his official capacity as the Attorney General of the State of Alabama." (Doc. 12.) Inasmuch as "Attorney General Strange has no objection to Plaintiffs' Motion for Leave to Amend[]" (Doc. 13, ¶ 4), the Magistrate Judge RECOMMENDS that the Court GRANT plaintiffs' motion to amend complaint and change defendant (Doc. 12). See Fed.R.Civ.P. 15(a)(2) ("[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires."). Upon the substitution of Luther Strange, in his official capacity as Attorney General of the State of Alabama, for the State of Alabama, the pending motion to dismiss (Doc. 8) will be MOOT ( see Doc. 13, at ¶ 5) and "Attorney General Strange will waive service of process." ( Id. at ¶ 4.)

CONCLUSION

Based upon the foregoing, the Magistrate Judge recommends that the Court GRANT the plaintiffs' motion to amend complaint and change defendant (Doc. 12). The substitution of Luther Strange, in his official capacity as Attorney General of the State of Alabama, for the State of Alabama, will MOOT the previously-filed motion to dismiss (Doc. 8).

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit precedent, "the failure to object limits the scope of [] appellate review to plain error review of the magistrate judge's factual findings. " Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (emphasis in original). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.


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