Heyman v. State of Nevada ex rel Board of Regents for the Nevada System of Higher Education et al

Filing 102

ORDER denying ECF No. 63 Motion to Strike Fugitive Documents and to Deny Plaintiff's Motions for Partial Default Against Defendants. Signed by Magistrate Judge George Foley, Jr., on 5/31/16. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6
7
8
9
10
11
12
13
14

DARREN HEYMAN,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF NEVADA EX REL. BOARD OF
)
REGENTS OF THE NEVADA SYSTEM OF
)
HIGHER EDUCATION ON BEHALF OF
)
UNIVERSITY OF NEVADA, LAS VEGAS, et al. )
)
Defendant.
)
__________________________________________)

Case No. 2:15-cv-01228-RFB-GWF
ORDER

This matter is before the Court on Defendants’ Joint Motion to Strike Fugitive Documents

15

and to Deny Plaintiff’s Motions for Partial Default Against Defendants (#63), filed on May 17,

16

2016. Plaintiff filed a Response (#77) on May 20, 2016.

17

On May 17, 2016, Plaintiff filed fifteen (15) Motions for Partial Default against Defendants

18

the State of Nevada ex rel. Board of Regents of the Nevada System of Higher Education on behalf

19

of the University of Nevada, Las Vegas, Curtis Love, Kristin Malek, Phillip Burns, Lisa Cain,

20

Sarah Tanford, Donald Snyder, Rhonda Montgomery, and Stowe Shoemaker (“Defendants”). See

21

Dkt. Nos. 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, and 62. Plaintiff argues that partial

22

default is warranted because Defendants have failed to file an answer to his Amended Complaint

23

(#28). See id. Defendants disagree. Defendants represent that they filed a Joint Motion to Dismiss

24

Partially the Claims in Plaintiff’s “First” (Second) Amended Complaint (#47) on May 13, 2016 —

25

the agreed upon response date. See Stipulation and Order to Extend Deadline (#33). While

26

Defendants admit that they did not otherwise answer Plaintiff’s Amended Complaint, they argue

27

that Plaintiff’s Motions for Partial Default Judgment should be denied because they run afoul of

28

Rule 12(a)(4) of the Federal Rules of Civil Procedure, which provides that filing a partial motion to

1

dismiss will suspend the time to answer those claims or counterclaims that are not subject to the

2

motion. The Court rejects this position.

3

Responses to amended complaints are governed by Rule 15 of the Federal Rule of Civil

4

Procedure. Under Rule 15, Defendants had fourteen (14) days after service of Plaintiff’s Amended

5

Complaint to file an answer. See Fed. R. Civ. P. 15(a)(3). Defendants failed to do so. Instead,

6

Defendants filed a partial motion to dismiss, which they presumed would automatically extend the

7

time for answering Plaintiff’s Amended Complaint under Rule 12(a)(4). Defendants cite to

8

Gamble v. Boyd Gaming Corp., 2014 WL 1331034 (D. Nev. Mar. 31, 2014) to support their

9

position. That case is inapposite here. In Gamble, the parties stipulated to consolidate three related

10

cases. Id. at *1. Following consolidation, the plaintiff filed a “Master Second Amended

11

Complaint” (“MSAC”) and the defendant answered by filing a partial motion to dismiss the

12

plaintiff’s fourth and fifth claims. Id. The plaintiff subsequently filed a motion to strike any

13

potential affirmative defenses defendant may have had to the plaintiff’s first through third claims

14

because the defendant failed to answer those claims. Id. The defendant opposed the plaintiff’s

15

motion to dismiss based on the tolling provision of Rule 12(a)(4) and based on the assertion that

16

the MSAC was a consolidated complaint rather than an amended complaint subject to Rule 15. Id.

17

at *2. The Gamble court held that the MSAC was not an amended complaint but rather a

18

consolidated complaint. Id. at *3. Therefore, the tolling provision contained in Rule 12(a)(4)

19

applied. Id.

20

Here, there is no question that Plaintiff filed an amended complaint and, as such, Rule

21

15—not Rule 12— applies. “Rule 12 dictates the time for responding to the initial summons and

22

complaint, Rule 15(a)(3) specifically addresses responses to amended pleadings.” Coppola v.

23

Proulx, 2012 WL 3068792, at *6 (D. Nev. July 26, 2012) (Emphasis in original). The tolling

24

provision contained in Rule 12(a)(4) expressly alters the response time to pleadings contemplated

25

by Rule 12, i.e. initial summonses and complaints. See Fed. R. Civ. P. 12(a)(4) (“Unless the court

26

sets a different time, serving a motion under this rule alters these periods as follows . . .”)

27

(Emphasis supplied). Under Rule 15 however, “the filing of a motion to dismiss does not extend

28

the time for filing an answer to an amended complaint, at least in the circumstances here where the
2

1

time for responding to the original complaint has already run.” General Mills, Inc. v. Kraft Foods

2

Global, Inc., 487 F.3d 1368, 1376 (Fed. Cir. 2007), as clarified on denial of rehearing, 495 F.3d

3

1378, 1380–81 (Fed. Cir. 2007). The time to respond to Plaintiff’s original complaint in this case

4

has long since run. Therefore, Defendants’ Partial Motion to Dismiss did not toll the deadline for

5

answering the remaining claims contained in Plaintiff’s Amended Complaint. As such, Plaintiff’s

6

Motions for Partial Default Judgment were properly filed. Accordingly,

7
8
9
10

ORDER
IT IS HEREBY ORDERED that Defendants’ Joint Motion to Strike Fugitive Documents
and to Deny Plaintiff’s Motions for Partial Default Against Defendants (#63) is denied.
DATED this 31st day of May, 2016.

11
12
13

______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3