Dismissed lawsuit claims get a second chance through an amended complaint.

Record source: CourtListener

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * BRIAN MARRERO, SR., * * Plaintiff, * * Civ. No. MJM-24-3311 v. * * VERIZON MARYLAND LLC, * * Defendant. * * * * * * * * * * * * MEMORANDUM OPINION AND ORDER This matter is before the Court on plaintiff Brian Marrero, Sr.’s (“Plaintiff”) Motion for Leave to File First Amended Complaint. ECF 35. By Memorandum Opinion and Order dated August 24, 2026, the Court granted in part and denied in part Defendant’s motion to dismiss Plaintiff’s Complaint, dismissed Counts I through X under Federal Rule of Civil Procedure 12(b)(6) for Plaintiff’s failure to allege sufficient facts to support timely and plausible claims for relief, and sustained Counts XI through XIII. ECF 29 & 30. The Court incorporates here the factual and procedural background outlined in Part I of its Memorandum Opinion. See ECF 29 at 1–5. Plaintiff now moves to amend his Complaint to cure pleading deficiencies identified in the Court’s Memorandum Opinion. ECF 35. Defendant Verizon Maryland LLC filed a response in opposition to the motion, ECF 37, and Plaintiff filed a reply, ECF 38. No hearing is necessary to resolve the motion. See Local Rule 105.6 (D. Md. 2025). For reasons explained below, Defendant’s motion shall be granted. I. Whether Counts I Through X Are Fully Adjudicated Defendant argues first that the Court’s dismissal of Counts I through X constitutes a full adjudication because the Court did not state whether the dismissal was with or without prejudice, and dismissal with prejudice is the default rule under Federal Rule of Civil Procedure 41(b). ECF 37 at 2–4; see also R.A. v. McClenahan, 122 F.4th 143, 147 (4th Cir. 2024) (“[A] dismissal ‘for failure to state a claim is with prejudice unless the court specifically orders dismissal without prejudice.’”) (quoting Ostrzenski v. Seigel, 177 F.3d 245, 248 (4th Cir. 1999)); Harrison v. Edison Bros. Apparel Stores, 924 F.2d 530, 534 (4th Cir. 1991) (“Dismissal of an action with prejudice is a complete adjudication of the issues presented by the pleadings and is a bar to a further action between the parties.”) (quoting Schwarz v. Folloder, 767 F.2d 125, 129 (5th Cir. 1985)). In reply, Plaintiff argues that the Court has discretion to treat Plaintiff’s motion for leave to amend as a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the dismissal with prejudice. ECF 38 at 2–3. First, Rule 59(e) is not the proper vehicle for the Court to alter or amend its dismissal of Counts I through X because that dismissal was an interlocutory judgment, and “Rule 59(e) . . . applies only to final judgments.” Saint Annes Dev. Co. v. Trabich, 443 F. App’x 829, 832 (4th Cir. 2011) (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991)); see also Menk v. Mitre Corp., No. 1:23-CV-00053-JRR, 2025 WL 1919941, at *1 (D. Md. July 11, 2025) (“Rules 59(e) and 60(b) do not apply to interlocutory orders.”) (citing Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003)). “Orders ‘that adjudicate[] fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.’” Menk, 2025 WL 1919941 at *1 (quoting Fed. R. Civ. P. 54(b)). Because the Court’s Order of partial dismissal “did not adjudicate all claims, rights, and liabilities of the parties[,]”1 it is properly “assessed under Rule 54(b)[,]” not Rule 59(e). Id. (citing Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017)). Whether to alter or amend an interlocutory order under Rule 54(b) “is committed to the discretion of the district court[.]” Am. Canoe Ass’n, 326 F.3d at 515 (citation omitted). It is well established that “a district court retains the power to reconsider and modify its interlocutory judgments . . . at any time prior to final judgment when such is warranted.” Id. at 514–15 (citation omitted). “A motion for reconsideration of an interlocutory order is ‘not subject to the strict standards applicable to motions for reconsideration of a final judgment’ under Rules 59(e) and 60(b).” Menk, 2025 WL 1919941, at *1 (quoting Am. Canoe Ass’n, 326 F.3d at 514). “[A] court may revise an interlocutory order under the same circumstances in which it may depart from the law of the case: (1) ‘a subsequent trial produc[ing] substantially different evidence’; (2) a change in applicable law; or (3) clear error causing ‘manifest injustice.’” Carlson, 856 F.3d at 325 (quoting Am. Canoe Ass’n, 326 F.3d at 515). The court may also “look[] to the standards applicable to relief afforded under Rules 59(e) and 60(b) for guidance in considering Rule 54(b) motions.” Menk, 2025 WL 1919941, at *1 (citing Carrero v. Farrelly, 310 F. Supp. 3d 581, 584 (D. Md. 2018)). The proper goal “is to reach the correct judgment under law.” Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 618–19 (D. Md. 2013) (citation omitted). The Court finds it proper to amend its Order of partial dismissal to clarify that the dismissal of Counts I through X in the original Complaint are without prejudice. “The determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.” Weigel v. Maryland, 950 F. Supp. 2d 811, 825 (D. Md. 2013) (quoting 180s, Inc. v. Gordini 1 The Court dismissed Counts I through X but sustained Counts XI through XIII. See ECF 29 at 24; ECF 30. U.S.A., Inc., 602 F. Supp. 2d 635, 638–39 (D. Md. 2009); see also Payne v. Brake, 439 F.3d 198, 204 (4th Cir. 2006). It is widely accepted among district courts that, “[w]hen a plaintiff fails to state a claim, he ‘should generally be given a chance to amend the complaint . . . before the action is dismissed with prejudice.’” Weigel, 950 F. Supp. 2d at 825–26 (quoting FinServ Cas. Corp. v. Settlement Funding, LLC, 724 F. Supp. 2d 662, 674–76 (S.D. Tex. 2010)). “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also Weigel, 950 F. Supp. 2d at 825 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). So, dismissal without prejudice, and with an opportunity to amend, is generally the proper course when a plaintiff’s initial complaint fails to state a plausible claim for relief but the pleading deficiencies may be cured with additional facts. Here, the Court did not expressly dismiss Counts I through X with

Official opinion source