Weisshaar et al vs Sierra Pacific Power Company

Filing 25

ORDER. IT IS ORDERED that plaintiffs' motion for leave to amend 21 isGRANTED. Plaintiffs shall have ten (10) days to file the proposed amended complaint attached as Exhibit A to the declaration in support of plaintiffs' motion for leave to amend 22 Exhibit A). IT IS FURTHER ORDERED that defendant's motion to dismiss 13 and motion to strike 14 are DENIED without prejudice.IT IS SO ORDERED. Signed by Judge Larry R. Hicks on 12/19/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RITA WEISSHAAR; et al.,

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Plaintiffs,

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v.

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SIERRA PACIFIC POWER COMPANY,

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Defendant.

3:11-cv-0360-LRH-WGC
ORDER

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Before the court are defendant Sierra Pacific Power Company’s (“Sierra Pacific”) motion to
dismiss (Doc. #131) and motion to strike request for attorney’s fees (Doc. #14).

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Also before the court is plaintiffs’ motion for leave to file an amended complaint. Doc. #21.
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Facts and Procedural History
This is an action brought by plaintiffs, employees of Sierra Pacific, for alleged violations of

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the collective bargaining agreement between Sierra Pacific and its employees. On May 19, 2011,

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plaintiffs filed their initial complaint alleging two causes of action: (1) violation of the collective

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bargaining agreement; and (2) breach of contract. Doc. #1. In response, Sierra Pacific filed the

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present motion to dismiss the breach of contract claim (Doc. #13) and motion to strike plaintiffs’

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request for attorney’s fees (Doc. #14). Thereafter, plaintiffs filed their motion for leave to file an

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Relates to the court’s docket number.

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amended complaint. Doc. #21.

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II.

Discussion

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A. Motion to Amend (Doc. #21)

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A party may amend its pleadings after a responsive pleading has been filed by leave of

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court. FED . R. CIV . P. 15(a)(2). Leave of court to amend should be freely given when justice so

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requires and when there is no undue delay, bad faith, or dilatory motive on the part of the moving

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party. See Wright v. Incline Village General Imp. Dist., 597 F.Supp.2d 1191 (D. Nev. 2009); DCD

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Programs, LTD v. Leighton, 883 F.2d 183 (9th Cir. 1987).

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Here, plaintiffs request leave to amend their complaint to dismiss their breach of contract

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claim and further flesh out the allegations relating to their violation of the collective bargaining

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agreement claim. See Doc. #21. A copy of the proposed amended complaint is attached as

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Exhibit A to plaintiffs’ declaration in support of the motion for leave to amend accordance with

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LR 15-1. Doc. #22, Exhibit A.

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The court finds that there is no undue delay, bad faith, or dilatory motive on behalf of

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plaintiffs in requesting leave to amend their complaint. Further, the court finds that the matter is

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early in litigation and that defendants would not be prejudiced by allowing amendment.

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Accordingly, plaintiffs shall be granted leave to amend their complaint.

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B. Motion to Dismiss (Doc. #13)

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The filing of an amended complaint supersedes the original complaint in its entirety.

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Accordingly, Sierra Pacific’s motion to dismiss the complaint is now moot. Because the court is

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granting plaintiffs’ motion for leave, the court shall deny the motion to dismiss without prejudice to

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allow Sierra Pacific an opportunity to respond to the amended complaint.

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C. Motion to Strike (Doc. #14)

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Sierra Pacific also seeks to strike plaintiffs’ demand for attorney’s fees if they are successful

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in this action. The court has reviewed the document and pleadings on file in this matter and finds
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that it is too early in litigation to determine whether or not plaintiffs would be entitled to attorney’s

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fees in this action. Therefore, the court shall also deny the motion to strike without prejudice.

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IT IS THEREFORE ORDERED that plaintiffs’ motion for leave to amend (Doc. #21) is

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GRANTED. Plaintiffs shall have ten (10) days to file the proposed amended complaint attached as

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Exhibit A to the declaration in support of plaintiffs’ motion for leave to amend (Doc. #22,

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Exhibit A).

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IT IS FURTHER ORDERED that defendant’s motion to dismiss (Doc. #13) and motion to
strike (Doc. #14) are DENIED without prejudice.

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IT IS SO ORDERED.

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DATED this 19th day of December, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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