King v. Lake County et al

Filing 75

ORDER: To the extent that he requests relief from the Court, 53 , 54 , 56 , 59 , Plaintiff's Responses are denied without prejudice. See Order for details. Signed by Judge Marcia Morales Howard on 10/19/2017. (MMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
Scotty King, Individually and as Personal
Representative of the Estate of Kimberly
King,
Plaintiff,
Case No. 5:17-cv-00052-oC-34PRL
vs.
Lake County, a municipal corporation;
Lake County Sheriff’s Department;
Gary S. Borders, in his official capacity as
Sheriff of Lake County; Deputy Nick Jones,
in his individual capacity; Deputy Robert
Sellers, in his individual capacity; Deputy
Pablo Rivera, in his individual capacity;
Deputy Shawn Lukens, in his individual
capacity; Corporal Nate Pickens, in his
individual capacity; John Doe Officers 110; and the Mascotte Police Department,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Response to Defendants Jones,
Sellers, Rivera, and Lukens’ Motion to Dismiss (Doc. 53), filed May 12, 2017; Plaintiff’s
Response to Defendant Sheriff of Lake County, Florida’s Partial Motion to Dismiss (Doc.
54), filed May 12, 2017; Plaintiff’s Response to Defendant Nate Pickens’s Motion to
Dismiss (Doc. 56), filed May 15, 2017; and Plaintiff’s Response to Defendant Mascotte
Police Department’s Motion to Dismiss (Doc. 59), filed May 23, 2017 (collectively,
Responses). In the Responses, Plaintiff, in addition to asserting that the motions to dismiss
are due to be denied, alternatively requests leave to amend his Amended Complaint (Doc.

13, Amended Complaint) in the event the Court finds that his allegations are inadequate.
See Response (Doc. 53) at 15; Response (Doc. 54) at 8-9; Response (Doc. 56), at 8;
Response (Doc. 59) at 9-10. 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 Rule 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, 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 he wishes to pursue such relief, he

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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:
To the extent that he requests affirmative relief from the Court, Plaintiff’s Response
to Defendants Jones, Sellers, Rivera, and Lukens’ Motion to Dismiss (Doc. 53); Plaintiff’s
Response to Defendant Sheriff of Lake County, Florida’s Partial Motion to Dismiss (Doc.
54); Plaintiff’s Response to Defendant Nate Pickens’s Motion to Dismiss (Doc. 56); and
Plaintiff’s Response to Defendant Mascotte Police Department’s Motion to Dismiss (Doc.
59) are DENIED without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 19th day of October, 2017.

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Copies to:
Counsel of Record
Pro Se Parties

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