Winland v. Harbor freight Tools USA, Inc. et al

Filing 38

ORDER granting 33 Motion to Amend/Correct Complaint; granting 34 Motion to Amend/Correct Complaint. Amended Complaint deadline: 7 days from entry of this Order. Third Party Complaint deadline: 7 days from entry of this Order. Signed by Judge James C. Mahan on 5/19/2017. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

JOYCE WINLAND,

8

Plaintiff(s),

9
10

Case No. 2:16-CV-987 JCM (GWF)
ORDER

v.
HARBOR FREIGHT TOOLS USA, INC.,

11

Defendant(s).

12
13

Presently before the court is a second motion to amend/correct complaint filed by plaintiff

14

Robert Winland, special administrator for the Estate of Joyce Winland (“plaintiff”). (ECF No.

15

33).1 No responses have been filed, and the period to do so has since passed.

16

Also before the court is defendant Harbor Freight Tools USA, Inc.’s (“defendant”) motion

17

for leave to file a third-party complaint. (ECF No. 34). Plaintiff filed a non-opposition response.

18

(ECF No. 35).2

19

I.

Facts

20

This is a premises liability action involving a slip and fall that took place at defendant’s

21

retail store on December 9, 2015, which resulted in a fractured hip. Joyce Winland tripped and

22

fell while exiting the Harbor Freight retail store in Henderson, Nevada, fracturing her hip in the

23

fall. (ECF No. 1-1).

24
25
26
27
28
James C. Mahan
U.S. District Judge

Plaintiff incorrectly titled his motion as “first” rather than “second” motion to
amend/correct complaint. Plaintiff’s first motion to amend/correct complaint was filed November
10, 2016. (ECF No. 21).
1

The court construes plaintiff’s non-opposition as a response, not a motion. Further,
pursuant to Local Rule IC 2-2(b), a separate document must be filed on the docket for each
purpose. The court cannot consider plaintiff’s (third) request for leave to amend/correct complaint
unless it is filed separately, as a motion.
2

1

On April 7, 2016, Joyce Winland filed a complaint in state court alleging two causes of

2

action: (1) negligence based on premises liability; and (2) negligent hiring, supervision, and failure

3

to warn. (ECF No. 1-1). On May 2, 2016, defendant removed the action to federal court. (ECF

4

No. 1).

5

On November 3, 2016, counsel filed a notice of suggestion of death, stating that Joyce

6

Winland (“decedent”) passed away unexpectedly during the pendency of the instant action on May

7

31, 2016. (ECF No. 18). The next day, on November 4, 2016, counsel filed a motion for

8

substitution of parties, requesting the substitution of Robert Winland in place of Joyce Winland as

9

plaintiff (ECF No. 19), which the court granted (ECF No. 20).
On January 16, 2017, with leave of the court (ECF No. 27), plaintiff filed an amended

10
11

complaint adding a claim for wrongful death. (ECF No. 28).

12

In the instant motions, plaintiff requests leave to file a second amended complaint to add

13

decedent’s daughter and heir Christine Lada as a plaintiff (ECF No. 33), and defendant requests

14

leave to file a third-party complaint against UniFirst Corporation (ECF No. 34). The court will

15

address each as it sees fit.

16

II.

Legal Standards & Discussion

17

As an initial matter, the parties’ motions (ECF Nos. 33, 34) do not comply with Local Rule

18

IC 2-2(a)(3)(A), which provides that “[e]xhibits and attachments must not be filed as part of the

19

base document in the electronic filing system.” LR IC 2-2(a)(3)(A). Rather, “[t]hey must be

20

attached as separate files[.]” LR IC 2-2(a)(3)(A).

21

Accordingly, the parties shall ensure that future filings comply with the local and federal

22

rules as future filings that fail to do so will be stricken. See, e.g., Ready Transp., Inc. v. AAR Mfg.,

23

Inc., 627 F.3d 402, 404 (9th Cir. 2010) (holding that district courts have inherent power to control

24

their own dockets); see also LR IC 7-1 (“The court may strike documents that do not comply with

25

these rules.”).

26

A. Motion to Amend/Correct Complaint

27

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

28

[to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court

James C. Mahan
U.S. District Judge

-2-

1

has interpreted Rule 15(a) and confirmed the liberal standard district courts must apply when

2

granting such leave. In Foman v. Davis, the Supreme Court explained:

3
4
5
6
7
8
9

In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of the amendment, etc.—the leave sought
should, as the rules require, be “freely given.”
371 U.S. 178, 182 (1962). In addition, Local Rule 15-1(a) provides as follows:
[T]he moving party must attach the proposed amended pleading to a motion seeking
leave of the court to file an amended pleading. The proposed amended pleading
must be complete in and of itself without reference to the superseded pleading and
must include copies of all exhibits referred to in the proposed amended pleading.
LR 15-1(a).

10
11
12

Pursuant to Local Rule 7-2(d), “the failure of an opposing party to file points and authorities
in response to any motion . . . constitutes a consent to the granting of the motion.” LR 7-2(d).
Thus, by failing to file a timely response, defendant has consented to the granting of plaintiff’s

13
motion to amend/correct complaint. See United States v. Hvass, 355 U.S. 570, 574–75 (1958)
14
(holding that local rules have the force of law).
15
Plaintiff has attached the proposed second amended complaint to his motion in accordance
16

with the local rules. Accordingly, the court will grant plaintiff’s second motion to amend/correct

17
complaint (ECF No. 33). Plaintiff shall file a second amended complaint identical to that attached
18
to his motion to amend/correct complaint (ECF No. 33 at 36–40).
19
B. Motion for Leave to File a Third-Party Complaint
20
Pursuant to Rule 14(a)(1), a defending party may serve a summons and complaint on a
21
non-party who is or may be liable to it for all or part of the claim against it. Fed. R. Civ. P. 14(a)(1).
22
23
24

However, “the third-party plaintiff must, by motion, obtain the court’s leave if it files the thirdparty complaint more than 14 days after serving its original answer.” Id.
The purpose of this rule is “to promote judicial efficiency by eliminating the necessity for

25
the defendant to bring a separate action against a third individual who may be secondarily or
26
27

derivatively liable to the defendant for all or part of the plaintiff’s original claim.” Southwest
Adm’rs, Inc. v. Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir. 1986). The decision whether to

28
implead a third-party defendant is at the sound discretion of the trial court. Id.
James C. Mahan
U.S. District Judge

-3-

1

Defendant seeks to file a third-party complaint against UniFirst Corporation (“UniFisrt”),

2

asserting that UniFirst is responsible for placing the mat which plaintiff claims caused decedent’s

3

injuries and death. (ECF No. 34 at 5). Further, plaintiff filed a non-opposition response to

4

defendant’s motion for leave to file a third-party complaint. (ECF No. 35).

5

Accordingly, the court will grant defendant’s motion for leave to file a third-party

6

complaint (ECF No. 34). Defendant shall file a third-party complaint identical to that attached to

7

its motion (ECF No. 34, exh. 1).

8

III.

9
10
11

Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s second motion

to amend/correct complaint (ECF No. 33) be, and the same hereby is, GRANTED.

12

IT IS FURTHER ORDERED that plaintiff shall file a second amended complaint identical

13

to that attached to his motion to amend (ECF No. 33 at 36–40) within seven (7) days of the entry

14

of this order.

15
16
17
18
19
20
21

IT IS FURTHER ORDERED that defendant’s motion for leave to file a third-party
complaint (ECF No. 34) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendant shall file a third-party complaint identical to
that attached to its motion (ECF No. 34, exh. 1) within seven (7) days of the entry of this order.
DATED May 19, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-4-