United States of America v. Schoenfeld

Filing 12

ORDERED: To the extent that it requests affirmative relief from the Court, Plaintiff's 11 Response in Opposition to Motion is DENIED without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 1/20/2017. (MHM)

TED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
Case No. 3:16-cv-1248-J-34PDB
vs.
ESTATE OF STEVEN SCHOENFELD and
ROBERT SCHOENFELD, a distribute of
the ESTATE OF STEVEN SCHOENFELD,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Response in Opposition to
Defendants’ Motion to Dismiss Amended Complaint or in the Alternative for Summary
Judgment and Incorporated Memorandum of Law (Doc. 11; Response), filed on January
19, 2017. In the Response, Plaintiff, in addition to asserting that Defendants’ motion is due
to be denied, alternatively requests leave to amend its complaint in the event the Court
finds that its allegations are inadequate. See Response at 17, 19. 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 it wishes to pursue such relief,
it is required to file an appropriate motion, in accordance with the Federal Rules of Civil
Procedure and the Local Rules of this Court.
ORDERED:

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To the extent that it requests affirmative relief from the Court, Plaintiff’s Response
in Opposition to Defendants’ Motion to Dismiss Amended Complaint or in the Alternative
for Summary Judgment and Incorporated Memorandum of Law (Doc. 11) is DENIED
without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 20th day of January, 2017.

lc11
Copies to:
Counsel of Record

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