Doshi et al v. Cagle Road Land LLC et al

Filing 8

ORDERED: To the extent that they request affirmative relief from the Court, 7 Plaintiffs' Response to Defendants' Motion to Dismiss Complaint is DENIED without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 5/10/2017. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

PARESH DOSHI and JITENDRA DOSHI,
Plaintiffs,
Case No. 3:17-cv-308-J-34JRK
vs.
CAGLE ROAD LAND LLC, et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiffs’ Response to Defendants’ Motion to
Dismiss Complaint (Doc. 7; Response), filed on May 9, 2017. In the Response, Plaintiffs,
in addition to asserting that Defendants’ motion to dismiss is due to be denied, alternatively
request leave to amend their complaint in the event the Court finds that their allegations
are inadequate. See Response at 11. 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 Plaintiffs’ request for
relief included in the Response. Plaintiffs are advised that, if they wish to pursue such
relief, they are required to file an appropriate motion, in accordance with the Federal Rules
of Civil Procedure and the Local Rules of this Court.
ORDERED:
To the extent that they request affirmative relief from the Court, Plaintiffs’ Response
to Defendants’ Motion to Dismiss Complaint (Doc. 7) is DENIED without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 10th day of May, 2017.

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Copies to:
Counsel of Record

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