Roadhouse et al v. Patenaude & Felix, APC

Filing 22

ORDER Denying without prejudice 14 Defendant's Motion to File First Amended Answer. Defendant shall file motion by 4/11/14. Plaintiff shall have until 4/18/14 to respond. IT IS FURTHER ORDERED that stipulated discovery Plan/Scheduling Order due by 4/18/2014. Signed by Magistrate Judge Carl W. Hoffman on 4/2/14. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TRINA ROADHOUSE, et al.,
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Plaintiffs,
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vs.
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PATENAUDE & FELIX, APC,
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Defendant.
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__________________________________________)

Case No. 2:13-cv-00560-GMN-CWH
ORDER

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This matter is before the Court on Defendant’s Motion Seeking Leave of Court to File First

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Amended Answer (#14), filed October 8, 2013; Plaintiffs’ Response (#19), filed October 25, 2013;

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and Defendant’s Reply (#21), filed November 4, 2013.

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The complaint in this matter was filed on April 1, 2013. (#1). Defendant filed its answer

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on August 30, 2013. (#8). Shortly thereafter, Plaintiff filed a motion to strike some, but not all, of

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Defendant’s affirmative defenses. (#10). Defendant filed an amended answer (#12) on October 8,

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2013, which it withdrew on the same day. (#13). Along with the notice of withdrawal(#13),

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Defendant filed a motion for leave to file an amended answer. (#14). The motion does not include

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an attached proposed amended answer as required by Local Rule 15-1(a). In response, Plaintiffs

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note that the request does not comply with the Local Rule and ask the Court to deny the motion

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because the failure deprives both Plaintiffs and the Court of an opportunity to evaluate the proposed

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amendments. In reply, Defendant concedes the failure to comply with LR 15-1(a), but argues that

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the failure has been cured because the proposed amended answer is attached to the reply. It further

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argues that Plaintiffs arguments regarding the amended complaint are now moot because any

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substantive deficiencies are cured by the proposed amended complaint as well.

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DISCUSSION
Defendant acknowledges that Local Rule 15-1(a) requires that “[u]nless otherwise permitted
by the Court, the moving party shall attach the proposed amended pleading to any motion to amend

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so that it will be complete in itself without reference to the superseding pleading.” Defendant also

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acknowledges that its motion does not comply with the Local Rule. The Court will deny the

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motion to amend based on the failure to attach the proposed amended pleading. Attaching the

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proposed amended answer to the reply does not cure the failure as the reply raises new matters for

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which Plaintiffs did not have the opportunity to respond. See Zamani v. Carnes, 491 F.3d 990, 997

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(9th Cir. 2007) (citation omitted) (where a moving party presents new matters for the first time in a

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reply brief, the court may either refuse to consider the new matters or allow the opposing party an

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opportunity to respond). Rather than permit a surreply, the Court will require new briefing on the

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issue.

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The undersigned separately notes that the parties have not submitted a stipulated discovery

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plan and scheduling order in accordance with Local Rule 26-1. It is not appropriate for parties to

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self-impose a stay pending resolution of potentially dispositive motions. See Tradebay, LLC v.

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eBay, Inc., 278 F.R.D. 597 (D. Nev.) (the Federal Rules do not provide for automatic or blanket

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stays of discovery when potentially dispositive motion is pending). Plaintiff’s pending motion to

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strike (#10) is not dispositive of all claims and defenses and, regardless of its outcome, discovery

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will go forward on the remaining claims and defenses.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Defendant’s Motion Seeking Leave of Court to File

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First Amended Answer (#14) is denied without prejudice. Defendant shall file its motion for

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leave to file an amended answer by Friday, April 11, 2014. Plaintiffs shall have until Friday,

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April 18, 2014 to file their response, if any.

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IT IS FURTHER ORDERED that Plaintiffs’ shall initiate the scheduling of the Fed. R.

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Civ. P. 26(f) meeting by Friday April 11, 2014. The parties shall submit a stipulated discovery

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plan and scheduling order by Friday, April 18, 2014.

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DATED: April 2, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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