Estate of Ronald Alexander Howard, II, Deceased, by: Cathy Pack, Personal Representative v. Holzman et al

Filing 153

ORDERED: To the extent that Plaintiff requests affirmative relief from the Court, Plaintiff's Responses (Docs. 146 , 147 , 148 , and 149 ) are DENIED without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 1/17/2018. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ESTATE OF RONALD ALEXANDER
HOWARD, II, deceased, by: CATHY
PACK, PERSONAL REPRESENTATIVE,
Plaintiff,
Case No. 3:17-cv-778-J-34JBT
vs.
DR. MARTIN I. HOLZMAN, MD, et al.,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s responses to four of the pending
motions to dismiss. See Plaintiff’s Memorandum in Opposition of Defendant, Vernon
Montoya, M.D.’s Motion to Dismiss [Doc 56] Fed. R. Civ. P. 12(b)(6) (Doc. 146); Plaintiff’s
Memorandum in Opposition of Defendant, Osvaldo Contarini, M.D.’s Motion to Dismiss
Plaintiff’s First Amended Complaint [Doc 89] (Doc. 147); Plaintiff’s Memorandum in
Opposition of Defendant, Martin I. Holzman, M.D.’s Motion to Dismiss Plaintiff’s Complaint
[Doc 104] (Doc. 148); Plaintiff’s Memorandum in Opposition of Defendant, Joseph Fares
M.D.’s Motion to Dismiss [Doc 124] (Doc. 149) (collectively, Responses), all filed on
January 12, 2018. In the Responses, Plaintiff, in addition to asserting that the motions to
dismiss are due to be denied, alternatively requests leave to amend the 1st Amended
Complaint and Demand for Jury Trial (Doc. 8) in the event the Court finds that her
allegations are inadequate. See Doc. 146 at 17; Doc. 147 at 15; Doc. 148 at 13; Doc. 149
at 15. 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 Responses, the
request is otherwise due to be denied for failure to comply with Local Rules 3.01(g), United
States District Court, Middle District of Florida (Local Rule(s)). 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 this deficiency under
the Local Rules, the request in the Responses 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 Responses. 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.
ORDERED:

2 

To the extent that Plaintiff requests affirmative relief from the Court, Plaintiff’s
Responses (Docs. 146-149) are DENIED without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 17th day of January, 2018.

lc11
Copies to:
Counsel of Record

3