Gurian v. Atria Management Company, LLC, et al.

Filing 42

ORDER Denying 34 Motion to Strike Second Amended Complaint as moot. Signed by Magistrate Judge Carl W. Hoffman on 5/23/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JACK GURIAN,
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Plaintiff,
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vs.
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ATRIA MANAGEMENT COMPANY, LLC,
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Defendant.
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__________________________________________)

Case No. 2:17-cv-00653-JCM-CWH
ORDER

Presently before the court is Defendant Atria Management Company’s (“Atria”) Rule 12(f)

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Motion to Strike Second Amended Complaint (ECF No. 34), filed on April 14, 2017. Plaintiff Jack

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Gurian filed a response (ECF No. 36) on April 28, 2017. Defendant filed a reply (ECF No. 38) on

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May 5, 2017.

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This case arises out of a dispute regarding whether Atria breached its duty to protect

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Plaintiff, a resident in an assisted-living facility managed by Atria, from an individual who

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unlawfully took over $250,000 of Plaintiff’s savings. (See Pl.’s First Am. Compl. (ECF No. 1-4).)

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Plaintiff commenced the case in Nevada state court in July 2014. (Pl.’s Compl. (ECF No. 1-2).)

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After approximately two and a half years of litigation in state court, in January 2017, Plaintiff filed

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a first amended complaint in state court that added Defendant Ventas, Inc. (“Ventas”) as a party.

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(Pl.’s First Am. Compl. (ECF No. 1-4) at 5-6.)

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Ventas removed the case to this court on March 3, 2017. (Notice of Removal (ECF No. 1).)

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Plaintiff moved to remand. (Mot. to Remand (ECF No. 8).) Plaintiff subsequently filed a notice

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(1) voluntarily dismissing Ventas from the case, (2) stating that he had filed a second amended

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complaint in state court in which Atria was the only remaining defendant, and (3) reiterating his

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request that the case be remanded to state court. (Notice (ECF No. 26).) A copy of the second

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amended complaint bearing a state court caption is attached to the notice. (Id. at Ex. 1.)
Atria now moves to strike the second amended complaint, arguing that Rule 15 of the

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Federal Rules of Civil Procedure does not allow Plaintiff to amend as a matter of course given the

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case’s procedural posture. Atria further argues it was improper for Plaintiff to file the second

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amended complaint in state court after removal. Plaintiff responds that he filed the second

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amended complaint in state court because he did not want to concede that this court had jurisdiction

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over the case. Plaintiff further responds that the motion to strike is a tactical attempt to keep the

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case in this court when it belongs in state court. Plaintiff also argues that its first amended

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complaint and second amended complaint are identical, except for the omission of Ventas as a

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party in the second amended complaint. Thus, Plaintiff contends that even if the court strikes his

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second amended complaint, the allegations against Atria remain unchanged.

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After Atria moved to strike the second amended complaint, the United States district judge

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assigned to this case denied the motion to remand. (Order (ECF No. 41).) In denying the motion to

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remand, the court determined that the first amended complaint remains the operative complaint in

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this case given Plaintiff’s explicit representations that the second amended complaint was filed only

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in state court. (Id. at 2.) Given this determination, it appears that the motion to strike is moot.

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IT IS THEREFORE ORDERED that Defendant Atria Management Company’s Rule 12(f)
Motion to Strike Second Amended Complaint is DENIED as moot.

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DATED: May 23, 2017

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

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