                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

WILBERT HARRIS,                                 )
                                                )
                     Plaintiff,                 )
                                                )
              v.                                )   Civil Case No. 11-114 (RJL)
                                                )
UNITED STATES DEPARTMENT OF                     )
VETERANS AFFAIRS,                               )
                                                )
                     Defendant.                 )
                                                )
                                              ft.".
                                  MEMORANDUM ORDER
                                  (March t ( 2012) [Dkt. # 8]

       On January 18,2011, plaintiff Wilbert Harris filed a complaint against the United

States Department of Veterans Affairs (the "VA") seeking damages under the Federal

Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq., for assault and battery, false

imprisonment and false arrest, and unconstitutional arrest and excessive force in violation

of his 4th Amendment rights. See Compi. [Dkt. #1] at 1, ~~ 18-35. On February 28,

2011, the summons and complaint was served on a representative authorized to accept

service on behalf of the United States Attorney's Office. Aff. of Servo [Dkt. #4]. On

April 29, 2011, the VA filed a Motion for Partial Dismissal of the Complaint ("VA's

Mot. to Dismiss") [Dkt. #6], seeking to dismiss Count III and Count IV of the complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.] VA's

Mot. to Dismiss at 1. The VA argued that "the FTCA authorizes suits against the 'United

States' in its name only" and, in any event, claims for damages "are barred by the

doctrine of sovereign immunity." VA's Mot. to Dismiss at 1-2. On July 14,2011,

plaintiff conceded to the dismissal of Counts III and IV, and indicated that he "expect[ed]

to seek leave of this [C]ourt to amend the subject complaint to substitute the United

States as a proper party defendant in lieu of the United States Department of Veterans

Affairs." PI.' s Resp. to Def.' s Mot. for Partial Dismissal of the Compi. [Dkt. # 10] at 1.

To date, plaintiff has not filed a motion for leave to file an amended complaint.

       However, on May 25, 2011, more than twenty-one days after the motion to

dismiss was filed and without leave of court or consent of the opposing party, plaintiff

filed an amended complaint against the United States, John Sheets, and an indeterminate

number of John Doe Security Officers of the Department of Veterans Affairs (together,

"defendants"), again alleging assault, battery, false imprisonment, and false arrest

pursuant to the FTCA, and unconstitutional arrest and excessive force in violation of his

4th Amendment rights. Am. Compi. [Dkt. #7]        ~~   4-6,22-39. The VA opposed the

amendment on several grounds. See Def.'s Opp'n to PI.'s Am. CompI., June 14,2011

("VA's Opp'n") [Dkt. #8]. First, the VA objected to the amendment because plaintiff

did not comply with Rule IS's twenty-one day deadline for filing an amended complaint

       ] In its motion, the VA specifically requested dismissal of Counts III and IV, but
did not, except for general references to "suits for money damages" for "an alleged
common law tort," VA's Mot. to Dismiss at 5, directly mention Counts I and II.
Therefore, according to the Court's reading of the VA's motion, the VA has not
requested dismissal of Counts I and II.

                                              2
as of right-instead filing his amended complaint twenty-six days after the VA's motion

to dismiss-and did not seek leave of court or consent of the VA. VA's Opp'n at 2-3.

Second, the VA argued that plaintiff has misjoined the new defendants. Id. at 3. Finally,

the VA argued that amendment is futile because the claims against the individually

named defendants in the amended complaint are barred by the statute of limitations. The

VA explicitly disavowed representation of the individual defendants. 2 Id. at 4.

        Under Rule 15 of the Federal Rules of Civil Procedure, "[t]he court should freely

give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). The decision

of whether to grant leave to amend is ultimately "vested in the sound discretion" of the

district court. Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977). When deciding on

a motion for leave to amend the complaint, the court should consider such factors as

"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, [or] futility of amendment. " Harris v.

Secy,   us. Dep 't a/Veterans Affairs, 126 F.3d 339,344 (D.C. Cir. 1997) (quoting
Farnan v. Davis, 371 U.S. 178, 182 (1962)).




       There is no indication in the record that the defendants named in the amended
        2
complaint have been served. See VA's Opp'n at 2 n.2.

                                              3
       Accordingly, upon consideration of the interests of justice, the fact that discovery

has not yet commenced in this action, Pl.'s Mot. for ~t~Dkt. #12] at 2, and that the

VA does not represent the defendants, it is, this _16_~ () March 2012, hereby
                                                      d:ay off

       ORDERED that the Department of Veterans Affairs' motion to dismiss is

GRANTED as conceded; it is further

       ORDERED that Count III and Count IV against the Department of Veterans

Affairs are DISMISSED; and it is further

       ORDERED that, in the interest of justice, plaintiff has been GRANTED leave to

file an amended complaint; and it is further

       ORDERED that the defendants have sixty (60) days from the date of service of

the amended complaint to respond.

       SO ORDERED.




                                           United States District Judge




                                               4
