Hubbuch v. Mullooly

Background

Edward B. Hubbuch, proceeding without a lawyer, originally asserted claims under the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and New York General Business Law § 349. The defendants were Mullooly, Jeffrey, Rooney & Flynn LLP, Amy Gavlik, and JP Morgan Chase Bank, N.A. The defendants filed motions to dismiss the original complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

After those motions were filed, Hubbuch filed a document labeled a First Amended Complaint. He then moved for permission to file a Second Amended Complaint, which included additional factual allegations and a supporting exhibit. The defendants’ pending motions to dismiss addressed the original complaint and did not address the proposed Second Amended Complaint.

Why the First Amended Complaint Was Stricken

Federal Rule of Civil Procedure 15(a)(1) allows a plaintiff to amend once without permission within 21 days after service of certain motions to dismiss. The court held that the 21-day period was triggered when Gavlik filed her motion to dismiss on August 8, 2025. That period ended on August 29, 2025; it did not restart when the other defendants later filed or refiled motions to dismiss.

Because Hubbuch filed the First Amended Complaint on October 3, 2025, the court concluded that he was not entitled to file it automatically. The court could have treated that filing as a request for permission to amend, but Hubbuch had separately asked for permission to file the proposed Second Amended Complaint and effectively abandoned the earlier pleadings in favor of that proposal. The court therefore struck the First Amended Complaint.

Next Steps and Disposition

The court determined that it would be unfair to evaluate the pending dismissal motions using the proposed Second Amended Complaint because the defendants had not briefed whether that pleading addressed the alleged defects. It also decided that the defendants should have an opportunity to review the proposed pleading and, if they wished, argue that amendment would be futile.

The defendants were ordered to notify the court in writing by October 17, 2025, whether they consented to the proposed Second Amended Complaint or opposed Hubbuch’s motion for permission to file it. If they consented, the proposed Second Amended Complaint would become the operative pleading, and they would have 14 days to answer or move to dismiss it. If they opposed, they would have 14 days to file opposition briefs.

Magistrate Judge Barbara Moses ordered that the First Amended Complaint at Docket 65 be STRICKEN. She also ordered that the motions to dismiss at Dockets 27, 52, and 60 be DENIED as moot. The opinion did not decide the merits of Hubbuch’s underlying claims or the sufficiency of the proposed Second Amended Complaint.