LANDIS v. TAILWIND SPORTS CORPORATION et al

Filing 145

MEMORANDUM OPINION AND ORDER re: 142 MOTION to Strike 140 MOTION to Amend/Correct 42 Amended Complaint, (Conditional) ; it is hereby ORDERED that Defendants Motion to Strike is hereby GRANTED; and it is further ORDERED that the Conditional Motion to Amend is STRICKEN from the record. (SEE ORDER FOR FULL DETAILS). Signed by Judge Robert L. Wilkins on 1/2/2014. (tcb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
ex rel. FLOYD LANDIS,
Plaintiffs,
Civil Action No. 10-cv-00976 (RLW)
v.
TAILWIND SPORTS CORPORATION,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This memorandum opinion and order addresses the relator’s conditional motion to amend
his complaint (Dkt. No. 140), Defendants Thomas W. Weisel and Ross Investments, Inc.’s
motion to strike the relator’s conditional motion to amend his complaint (Dkt. No. 142), and the
relator’s reply thereto (Dkt. No. 143).
The conditional motion to amend filed by the relator is clearly in the nature of an
unauthorized surreply. Generally speaking, if a plaintiff seeks to meet a motion to dismiss by
filing an amended complaint, then the plaintiff should file a motion to amend his complaint
pursuant to Fed. R. Civ. P. 15(a), rendering the motion to dismiss moot, or at least allowing the
proposed amendment to be considered simultaneously with the motion to dismiss. Having failed
to do so in this case, the relator has filed an eleventh hour “conditional” motion to amend his
complaint. This conditional motion is essentially an improper surreply, because it makes
additional arguments about why the motion to dismiss should not be granted, indeed citing and
referring at length to the already-filed second amended complaint. This belated attempt to inject
new arguments before the Court about the propriety of the second amended complaint, following

full briefing and oral argument on the motions to dismiss that very complaint, is improper. It is
also improper for the relator to seek to have the Court issue an advisory ruling on the legal
sufficiency of a “draft” or “conditional” amended complaint. The Court does not make advisory
rulings, see Golden v. Zwickler, 394 U.S. 103 (1969), nor does the Court entertain moving
targets, see Schoenman v. F.B.I., 575 F. Supp. 2d 166, 173 (D.D.C. 2008) (“Simply put, this case
is not a game and Plaintiff's briefing should not be a moving target …”). The Court is aware that
the relator seeks leave to amend if any of the motions to dismiss are granted, and the Court will
address that request, if necessary, at the appropriate time. Accordingly, it is hereby
ORDERED that Defendants’ Motion to Strike is hereby GRANTED; and it is further
ORDERED that the Conditional Motion to Amend is STRICKEN from the record.
SO ORDERED.

Date: January 2, 2014

Digitally signed by Judge Robert L. Wilkins
DN: cn=Judge Robert L. Wilkins, o=U.S.
District Court, ou=Chambers of Honorable
Robert L. Wilkins,
email=[e-mail], c=US
Date: 2014.01.02 15:21:52 -05'00'

ROBERT L. WILKINS
United States District Judge