Dennewitz v. Mandalay Corp.

Filing 15

ORDER that 10 Motion for Leave to Amend Complaint is GRANTED. FURTHER ORDERED that 6 Motion to Dismiss is DENIED as moot. Signed by Judge James C. Mahan on 3/12/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RUSSELL DENNEWITZ,

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Case No. 2:14-CV-2111 JCM (VCF)
Plaintiff(s),

ORDER

v.
MANDALAY CORP.,

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Defendant(s).

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Presently before the court is plaintiff Russell Dennewitz’s motion for leave to amend

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complaint. (Doc. # 10). Defendants Mandalay Corp., et al., have not filed a response and the

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deadline to do so has passed.

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Also before the court is defendants’ motion to dismiss. (Doc. # 6). Plaintiff filed a response
(doc. # 9), and defendants filed a reply (doc. # 11).

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Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely give leave

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[to amend] when justice so requires,” and when there is no “undue delay, bad faith [,] dilatory

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motive on the part of the movant . . . undue prejudice to the opposing party by virtue of . . . the

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amendment, [or] futility.” Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182, 222 (1962).

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Generally, leave to amend is denied only when it is clear that the deficiencies of the

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complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,

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658 (9th Cir. 1992). As stated above, defendants have failed to file any response in opposition to

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plaintiff’s motion for leave to amend complaint. Local Rule 7–2(d) provides that “failure of an

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opposing party to file points and authorities in response to any motion shall constitute a consent to

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the granting of the motion.” LR 7–2(d). Therefore, defendants have consented to plaintiff’s

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motion for leave to amend.

James C. Mahan
U.S. District Judge

Because defendants’ motion to dismiss (doc. # 6) is based on the allegations of the original

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complaint, the court will deny defendants’ motion to dismiss as moot.1

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for

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leave to amend complaint (doc. # 10) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants’ motion to dismiss (doc. # 6) be, and the

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same hereby is, DENIED as moot.
DATED March 12, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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In granting plaintiff’s motion to amend, the court offers no comment as to whether plaintiff’s

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amended claims are sufficient to withstand dismissal or summary judgment.

James C. Mahan
U.S. District Judge

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