Rivers v. River Oak Realty, Inc.

Filing 24

ORDERED: To the extent that she requests affirmative relief from the Court, 23 Plaintiff's Response is denied without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 10/14/2016. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

KIMBERLY RIVERS,
Plaintiff,
Case No. 3:16-cv-240-J-34JRK
vs.
RIVER OAK REALTY, INC. and
CHARLOTTE MOORE, in her capacity as
a real estate agent and agent of River Oak
Realty, Inc.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiffs’ Response to Defendants’ Motion to
Dismiss Plaintiffs’ Complaint (Doc. 23; Response), filed on October 11, 2016. In the
Response, Plaintiff, in addition to asserting that Defendants’ motion to dismiss is due to be
denied, states that she “will be very cooperative and very willing to amend complaint to
include proper form only if deemed necessary by the court.” See Response at 3. To the
extent this statement constitutes a request, in the alternative, for leave to amend her
pleading, Plaintiff is advised that such a request for affirmative relief is not properly made
when simply included in a response to a motion. See Fed. R. Civ. P. 7(b); see also
Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009) (“Where a request for leave to file
an amended complaint simply is imbedded within an opposition memorandum, the issue
has not been raised properly.”) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222
(11th Cir. 1999)).

Moreover, even if it were proper to include this request in the Response, the request
is otherwise due to be denied for failure to comply with Local Rules 3.01(a) and 3.01(g),
United States District Court, Middle District of Florida (Local Rule(s)). Local Rule 3.01(a)
requires a memorandum of legal authority in support of a request from the Court. See
Local Rule 3.01(a). Local Rule 3.01(g) requires certification that the moving party has
conferred with opposing counsel in a good faith effort to resolve the issue raised by the
motion and advising the Court whether opposing counsel agrees to the relief requested.
See Local Rule 3.01(g). In addition to these deficiencies under the Local Rules, the request
in the Response also fails to satisfy the requirement that “[a] motion for leave to amend
should either set forth the substance of the proposed amendment or attach a copy of the
proposed amendment.” Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also
McGinley v. Fla. Dep’t of Highway Safety and Motor Vehicles, 438 F. App’x 754, 757 (11th
Cir. 2011) (affirming denial of leave to amend where plaintiff did not set forth the substance
of the proposed amendment); United States ex. rel. Atkins v. McInteer, 470 F. 3d 1350,
1361-62 (11th Cir. 2006) (same). Thus, the Court will not entertain Plaintiff’s request for
relief included in the Response. Plaintiff is advised that, if she wishes to pursue such relief,
she is required to file an appropriate motion, in accordance with the Federal Rules of Civil
Procedure and the Local Rules of this Court.
Accordingly, it is
ORDERED:

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To the extent that she requests affirmative relief from the Court, Plaintiff’s Response
to Defendants’ Motion to Dismiss Plaintiffs’ Complaint (Doc. 23) is DENIED without
prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 14th day of October, 2016.

lc11
Copies to:
Counsel of Record
Pro Se Parties

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