Stone v. St. Rose Hospital et al

Filing 29

ORDER GRANTING 17 Motion to Dismiss amended complaint : The 14 Amended Complaint is DISMISSED without prejudice. The original 1 Complaint will remain the operative pleading in this case until further order of the court. FURTHER ORDERED 19 Motion is DENIED. Signed by Judge Jennifer A. Dorsey on 10/14/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Orsburn Stone,

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Plaintiff

2:15-cv-00083-JAD-GWF
Order Granting Motion to Dismiss
Amended Complaint

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v.

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St. Rose Hospital, dba Dignity Health, a Nevadabased Company; Does & Roes I–XX, inclusive,

[ECF 17, 19]

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Defendants
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Pro se plaintiff Orsburn Stone—a nurse at St. Rose Dominican Hospital—sues his employer,

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Dignity Health, for discrimination, harassment, and Title VII retaliation.1 Three months after Dignity

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Health answered his complaint,2 Stone filed an amended complaint adding claims by a new plaintiff,

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Ronald Tosh.3 Dignity Health moves to dismiss the amended complaint because it was filed in

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violation of Rule 15 of the Federal Rules of Civil Procedure.4 Because plaintiff did not have

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permission to file his amended complaint, I grant the motion to dismiss the amended complaint,

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leaving the original complaint as the operative one. If plaintiff desires to file his amended complaint,

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he must file a properly supported motion to amend that complies with the Federal Rules of Civil

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Procedure and the Local Rules of this district.5

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ECF 1.

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ECF 6.

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ECF 14. It appears there are pages missing from this amended complaint as filed because it jumps
from page 1 to page 6.
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ECF 17.

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A link to the local rules can be found on the home page of the court’s website:
http://www.nvd.uscourts.gov/.
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Discussion

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Rule 15(a) of the Federal Rules of Civil Procedure governs amendment of pleadings in

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federal court. When a plaintiff desires to amend his complaint more than 21 days after the defendant

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has filed its answer, the plaintiff must first get the consent of the defendant or permission (leave)

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from the court to file the amended complaint.6 This district’s local rule 15-1 dictates the form of that

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request for leave of court: “the moving party shall attach the proposed amended pleading to any

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motion to amend, so that it will be complete in itself without reference to the superseding pleading.

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An amended pleading shall include copies of all exhibits referred to in such pleading.”7 Thus, when

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a plaintiff wants to file an amended complaint and more than 21 days have elapsed since the

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defendant answered and the defendant will not stipulate to the amendment, the plaintiff must file a

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properly supported motion for leave to amend, attaching a full copy of the proposed amended

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complaint. A plaintiff is not relieved of his obligation to comply with the rules and procedures of

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this court simply because he has not retained, or cannot afford to retain, an attorney to represent

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him.8

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Plaintiff’s amended complaint was filed three months after Dignity Health answered his

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complaint. And plaintiff lacked both the consent of Dignity Health and leave of court. His amended

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complaint is thus an unauthorized, fugitive document without legal force or effect. Plaintiff’s single-

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page “Motion to Deny Defendants Motion to Dismiss Plaintiffs Amended Complaint in its

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Entirety,”9 which I construe as an opposition to Dignity Health’s motion to dismiss, fails to persuade

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Fed. R. Civ. P. 15(a)(1).

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L.R. 15-1(a).

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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of
procedure that govern other litigants.”); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)
(“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of
procedure.”); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986) (“[P]ro se litigants in the
ordinary civil case should not be treated more favorably than parties with attorneys of record.”).

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ECF 19. Stone is cautioned that oppositions to motions in federal court are typically called a
“response” or “opposition,” not a “motion to deny.” See L.R. 7-2(b).
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me otherwise. I thus grant Dignity Health’s motion to dismiss in part;10 the amended complaint is

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dismissed without prejudice, leaving the original complaint as the operative pleading in this case.11

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If plaintiff wishes to file an amended complaint, he must first obtain leave of court by filing a proper

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motion for leave to amend.12 And because the deadline for amending the pleadings has passed,13

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plaintiff must also demonstrate (in his motion for leave to amend) excusable neglect for his failure to

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request permission to amend before the June 2, 2015, deadline expired.14

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Conclusion

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss [ECF 17] is GRANTED
in part. The Amended Complaint [ECF 14] is DISMISSED without prejudice; the original
complaint will remain the operative pleading in this case until further order of the court.

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IT IS FURTHER ORDERED that plaintiff’s Motion to Deny Defendant’s Motion to Dismiss
[ECF 19] is DENIED.

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Dated this 14th day of October, 2015

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_________________________________
_______________________
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Jennifer A. Dorsey
er A Dorsey
ors
United States District Judge
e

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The motion is granted in part. Dignity Health asks me to dismiss the amended complaint with
prejudice. See ECF 17 at 7. I dismiss the amended complaint without prejudice and permit plaintiff
the opportunity to demonstrate with a proper motion for leave to amend that amendment is
warranted.
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This means that Ronald Tosh is not currently a party to this case. The only claims and parties that
currently exist in this case are the ones stated in the original complaint. ECF 1.

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A motion must be supported by points and authorities, i.e., a detailed analysis of why this court
should permit amendment, citing to and incorporating the applicable rules and legal standards.
See L.R. 7-2(a).
See ECF 9 at 2 (noting the June 2, 2015, deadline “to file motions to amend pleadings or to add
parties”).
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See Fed.R.Civ.P. 6(b)(1)(B)(stating “the court may, for good cause, extend the time on motion
made after the time has expired if the party failed to act because of excusable neglect.”).
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