Winston v. State Farm Mutual Automobile Insurance Company
Filing
34
ORDERED: To the extent that she requests affirmative relief from the Court, 33 Plaintiff's Response is denied without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 3/22/2017. (MHM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BETHANY M. WINSTON,
Plaintiff,
Case No. 3:16-cv-679-J-34PDB
vs.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, a mutual
corporation,
Defendant.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Response to Defendant’s Motion to
Dismiss Plaintiff’s Third Amended Complaint and Incorporated Memorandum of Law (Doc.
33; Response), filed on March 17, 2017. In the Response, Plaintiff, in addition to asserting
that Defendant’s motion to dismiss is due to be denied, alternatively requests leave to
amend her complaint in the event the Court finds that her punitive damages allegations are
inadequate.
See Response at 16.
Preliminarily, the Court notes that a request for
affirmative relief, such as a request for leave to amend a pleading, 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:
2
To the extent that she requests affirmative relief from the Court, Plaintiff’s Response
to Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint and Incorporated
Memorandum of Law (Doc. 33) is DENIED without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 22nd day of March, 2017.
lc11
Copies to:
Counsel of Record
Pro Se Parties
3
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