Fasick v. Regency Centers, L.P., No. 8:2013cv02127 - Document 18 (D. Md. 2013)
Court Description: MEMORANDUM OPINION AND ORDER DENYING as moot 13 Plaintiff's motion for leave to amend the complaint, DIRECTING the clerk to detach ECF No. 13-3 from the motion for leave to amend and file it separately as the first amended complaint, DIRECTING Plaintiff promptly to submit a summons to the clerk naming Regency Centers, L.P., as the defendant, and DENYING as moot 8 Defendant's motion to dismiss. Signed by Chief Judge Deborah K. Chasanow on 11/21/13. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : PAULETTE FASICK : v. : Civil Action No. DKC 13-2127 : REGENCY CENTERS CORPORATION : MEMORANDUM OPINION AND ORDER Plaintiff Paulette Fasick commenced this action on June 5, 2013, by filing a complaint in the Circuit Court for Prince George s County, Maryland, alleging negligence against Defendant Regency Centers Corporation. The complaint asserts that, on or about June 17, 2010, at approximately 3:00 p.m., Plaintiff . . . was lawfully on the premises owned and/or maintained by Defendant, as an invitee at the subject property i.e., Bowie Plaza Shopping Center, in Bowie, Maryland when she fell down a stairway that serious injuries. was in a hazardous condition and sustained (ECF No. 2 ¶¶ 3, 4). Defendant timely removed to this court, citing diversity of citizenship as the jurisdictional basis. On July 31, 2013, Defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that it did not own or operate Bowie Plaza Shopping Center and, therefore, owed no duty to [Plaintiff] and has no liability for her injuries. Plaintiff opposed Defendant s motion, (ECF No. 8 ¶ 6).1 arguing that multiple Regency entities shared a common address and resident agent, that these were separate corporate entities in name only[,] and that this misnomer, if it be a misnomer at all, should allowed to be corrected via amendment if necessary. be (ECF No. 11 ¶ 11). On August 20, Plaintiff filed a motion for leave to amend complaint, the seeking L.P. as the defendant. to substitute Regency Centers, (ECF No. 13 ¶ 2). Pursuant to Fed.R.Civ.P. 15(a)(1)(B), [a] party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b)[.] Plaintiff s motion for leave to amend, which attached a proposed amended complaint (ECF No. 13-3), was filed Defendant filed its motion to dismiss. twenty-one days after Therefore, Plaintiff was entitled to file an amended complaint without seeking leave and 1 Although this motion is labeled as a motion to dismiss and expressly seeks dismissal of the complaint, it addresses the standard for summary judgment and attaches a number of exhibits, including the declaration of John Zuk, a property manager for Regency Centers, L.P., attesting that Regency Centers Corporation is not the owner or manager of the property (ECF No. 8-2 ¶¶ 4, 5), and a Property Management and Leasing Agreement, suggesting that Regency Realty Group, Inc., a Florida corporation, is the property manager and leasing agent. (ECF No. 8-3, at 1, A-1). The court may not consider outside evidence in connection with a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See Kress v. Food Employers Labor Relations Ass n, 217 F.Supp.2d 682, 684 (D.Md. 2002). 2 Defendant s motion to dismiss the original complaint is rendered moot. Accordingly, it is this 21st day of November, 2013, by the United States District Court for the District of Maryland, ORDERED that: 1. Plaintiff s motion for leave to amend the complaint (ECF No. 13) BE, and the same hereby IS, DENIED AS MOOT; 2. The clerk is directed to detach ECF No. 13-3 from the motion for leave to amend and file it separately as the first amended complaint; 3. Plaintiff is directed promptly to submit a summons to the clerk naming Regency Centers, L.P., as the defendant; 4. Defendant s motion to dismiss (ECF No. 8) BE, and the same hereby IS, DENIED AS MOOT; 5. The clerk is directed to transmit copies of this Memorandum Opinion and Order to counsel for the parties. _________/s/________________ DEBORAH K. CHASANOW United States District Judge 3
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