Gonzales v. Desert Land, LLC et al

Filing 184

ORDER denying 181 Motion to Reconsider; striking 159 and 160 pleadings. Signed by Judge Robert C. Jones on 12/16/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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In re SPECIALTY TRUST, INC.,
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Debtor.
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________________________________________ )
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TOM GONZALES,
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Plaintiff,
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vs.
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DESERT LAND, LLC et al.,
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Defendants.
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3:11-cv-00613-RCJ-VPC
ORDER

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This case arises out of the alleged breach of a settlement agreement that was part of a

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confirmation plan in a Chapter 11 bankruptcy case. The Court recently ordered the Clerk to enter

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judgment in this case nunc pro tunc as of the date the Court clarified that it had intended a

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previous order to finally adjudicate all claims, because the claims had been affirmed on appeal.

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The Court had neglected to enter the proposed final judgment it solicited from Defendants as an

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administrative matter, but the Court of Appeals accepted jurisdiction under 28 U.S.C. § 1291 and

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ruled as if the Court had entered judgment. Plaintiff has asked the Court to reconsider, arguing

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that because he filed a supplemental complaint while the case was on appeal, the Court must

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adjudicate the claims therein. The Court disagrees and strikes that pleading, as well as the

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answer thereto, because Plaintiff did not request leave to file any supplemental complaint.

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“[W]hile a party may freely offer an amendment at any time before a responsive pleading is

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served, supplements always require leave of the court.” United States v. Hicks, 283 F.3d 380, 385

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(D.C. Cir. 2002) (citing 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and

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Procedure § 1504, at 186 (2d ed. 1990)).

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In reply, Plaintiff argues that the Court granted him leave to file the SC in the present case

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via an order it issued in another case. (See Order, ECF No. 24 in Case No. 2:13-cv-931 (“If

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Plaintiff truly believes the recent encumbrances of Parcel A have triggered the Parcel Transfer

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Fee independently of the acts already complained of in the ‘613 Case, he may file a supplemental

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claim to that effect in that case.”)). No. The Court in the ‘931 Case merely suggested a more

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appropriate route for Plaintiff to present his new allegations. Plaintiff never actually requested or

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received permission to file the SC in the present case. If he had, the Court would likely have

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denied it, because all claims had been finally adjudicated, and the case was before the Court of

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Appeals. That presumably does not foreclose Plaintiff from filing a new case based upon the

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new allegations—the Court makes no comment here as to preclusion issues—but the present case

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is closed, and the Court will not address supplemental claims presented without leave and, more

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importantly, while the finally adjudicated case was on appeal, and where the Court of Appeals

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has affirmed the grant of summary judgment.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 181) is DENIED.

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IT IS FURTHER ORDERED that the pleadings at ECF Nos. 159 and 160 are

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STRICKEN.
IT IS SO ORDERED.
Dated this 16th day of December,
Dated this 2nd day of December, 2014.2014.

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_____________________________________
ROBERT C. JONES
United States District Judge

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