Case No. 99-14540-RGM (Chapter 7), Adv. Proc. No. 99-1324.United States Bankruptcy Court, E.D. Virginia, Alexandria Division
February 11, 2000.
MEMORANDUM OPINION AND ORDER
Robert G. Mayer, United States Bankruptcy Judge.
The City of Folsom filed a complaint to determine dischargeability of a debt in this court on December 6, 1999. The complaint was served on the debtor on December 10, 1999. The debtor filed a motion to dismiss on January 5, 2000. The debtor did not file a supporting memorandum as represented in the motion to dismiss. Notwithstanding the deficiency, the complainant filed an amended complaint on January 18, 2000, which on its face meets the objection raised in the motion to dismiss.
Pursuant to Federal Rule of Bankruptcy Procedure 7015(a), a party may amend its pleadings as a matter of course at any time before a responsive pleading is filed. If he does so, the responding party must respond to the amended pleading within the time remaining for a response to the original pleading or within ten days after service of the amended pleading whichever may be longer unless the court otherwise orders. A motion to dismiss is not a responsive pleading for purposes of Rule 7015(a). Domino Sugar Corporation vs. Sugar Workers Local Union 392, 10 F.3d 1064, 1068 n. 1 (4th Cir., 1993). Smith vs. Blackledge, 451 F.2d 1201, 1203 n. 2 (4th Cir., 1971). The complainant therefore had the right to file an amended pleading which triggered the filing of a response by the debtor.
The complainant has sought an order modifying the scheduling order to permit additional time within which to submit a witness list. In light of the fact that the defendant appears to be in default for having failed to respond to the amended complaint, it is premature to grant the order extending time to file a witness list. It is, therefore, ORDERED that the complainant’s motion to modify the scheduling order be and is hereby denied.