Mclellan v. State of Nevada Department of Public Safety

Filing 35

ORDER DENYING as moot Defendant State of Nevada's 16 Motion to Dismiss; GRANTING Plaintiff's 30 Motion to Amend/Correct Complaint. Plaintiff must file his First Amended Complaint 30 -1 as a separate docket entry. Signed by Judge Miranda M. Du on 04/09/2013. (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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***

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RICK MCLELLAN,

Case No. 3:12-cv-00391-MMD-WGC
Plaintiff,

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v.

ORDER

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STATE OF NEVADA ex rel.
DEPARTMNET OF PUBLIC SAFETY, et
al.,

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(Def.’s Motion to Dismiss - dkt. no. 16;
Plf.’s Counter Motion to Amend
- dkt. no. 30)

Defendants.
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Before the Court are Defendant State of Nevada’s Motion to Dismiss (dkt. no. 16)

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and Plaintiff Rick McLellan’s Counter Motion to Amend (dkt. no. 30). After reviewing the

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parties’ briefings, the Court denies the State’s Motion to Dismiss, and grants McLellan’s

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Counter Motion.

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McLellan filed his Complaint on July 19, 2012, against the State of Nevada and

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various officials of the State’s Department of Public Safety, including Chris Perry, Jarold

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Hafen, and Tony Almaraz.

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Defendants violated his First Amendment rights by retaliating against him during his

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employment with the Department of Public Safety as a Trooper. McLellan brought one

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claim under 42 U.S.C. § 1983, which Defendant State of Nevada moved to dismiss as

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violating its Eleventh Amendment immunity. (See dkt. no. 16.) In lieu of a Response,

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McLellan filed a Counter Motion seeking to amend his Complaint by removing the State

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of Nevada as a defendant and by pursuing a claim against Chris Perry in both his

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individual and official capacity as Director of the Department of Public Safety. None of

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the Defendants filed an opposition to McLellan’s Counter Motion.

(Compl., dkt. no. 1 at ¶¶ 2-5.)

McLellan alleges that

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Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its

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complaint only by leave of the court once responsive pleadings have been filed and in

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the absence of the adverse party=s written consent. Thornton v. McClatchy Newspapers,

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Inc., 261 F.3d 789, 799 (9th Cir. 2001). The court has discretion to grant leave and

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should freely do so Awhen justice so requires.@ Allen v. City of Beverly Hills, 911 F.2d

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367, 373 (9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)). Nonetheless, courts may deny

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leave to amend if it will cause: (1) undue delay; (2) undue prejudice to the opposing

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party; (3) the request is made in bad faith; (4) the party has repeatedly failed to cure

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deficiencies; or (5) the amendment would be futile.

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Leadsinger, Inc. v. BMG Music

Publ=g, 512 F.3d 522, 532 (9th Cir. 2008).

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The circumstances here warrant granting McLellan’s Counter Motion to amend his

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Complaint. First, his Counter Motion was unopposed, which, under this District’s Rules,

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constitutes consent to the Motion’s granting. See Local Rule 7-2(d). Second, the Motion

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is not brought with bad faith, and no undue delay or prejudice will result from allowing

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McLellan to properly plead his First Amendment claim against the appropriate state

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official. Third, the Amendment is not futile, since his request for injunctive relief against

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Chris Perry in his official capacity does not violate the Eleventh Amendment. See

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Mayweathers v. Newland, 314 F.3d 1062, 1069-70 (9th Cir. 2002) (citing Ex Parte

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Young, 209 U.S. 123 (1908)). As a result, good cause appears to grant McLellan’s

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Counter Motion.

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Accordingly, IT IS HEREBY ORDERED that Defendant State of Nevada’s Motion

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to Dismiss (dkt. no. 16) is DENIED as moot. IT IS FURTHER ORDERED that Plaintiff

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Rick McLellan’s Counter Motion to Amend (dkt. no. 30) is GRANTED. McLellan must file

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his First Amended Complaint (dkt. no. 30-1) as a separate docket entry.

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DATED THIS 9th day of April 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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