Akinola v. Severns et al

Filing 26

ORDER - Plaintiff's # 20 Motion for leave to file an amended complaint is DENIED. Plaintiff's alternative motion to extend the time to respond to defendant's # 5 Motion to dismiss is GRANTED : Response to # 5 Motion to dismiss due by 2/16/2015. Reply due by 2/25/2015. Signed by Judge Howard D. McKibben on 2/2/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AYODELE AKINOLA,

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Plaintiff,

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vs.

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DAVID SEVERNS, an individual,
MIKE PREMO, an individual,

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Defendants.
_________________________________

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3:14-cv-00222-HDM-WGC
ORDER

Before the court is plaintiff Ayodele Akinola’s motion for

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leave to file an amended complaint(#20). Defendants David Severns

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and Mike Premo responded (#22); plaintiff did not reply.

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Procedural History

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Plaintiff filed the original complaint on April 25, 2014 (#1),

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and a notice of suspension of plaintiff’s counsel on June 17, 2014

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(#3). Defendant Mike Premo filed a motion to dismiss pursuant to

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Federal Rule of Civil Procedure 12(b)(6) on July 10, 2014 (#5).

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Thereafter, on July 23, 2014, the court stayed further action on

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this matter until further order of the court (#7).

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Attorney Brian R. Morris entered a notice of appearance on
behalf of plaintiff on August 25, 2014 (#10). Plaintiff
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subsequently moved for an extension of time to effect service on

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defendant David Severns (#11). The court granted the extension of

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time (#12) and on September 23, 2014, Mr. Severns was served (#23).

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On November 3, 2014, Mr. Severns joined Mr. Premo’s motion to

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dismiss (#14).

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On November 17, 2014, the court vacated the stay and granted

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plaintiff 20 days to respond to the motion to dismiss (#15). On

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December 10, 2014, plaintiff filed its response to defendant’s

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motion to dismiss (#18), which consisted of a request to amend the

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complaint or, in the alternative, additional time to respond to

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defendants’ motion to dismiss. After notice from the court that a

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motion for leave to file an amended complaint would need to be

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filed separately (#19), plaintiff filed the instant motion.

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Analysis

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Plaintiff requests the court allow an amended complaint to be

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filed as a matter of course. Alternatively, plaintiff contends

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justice requires the court to grant leave to amend.

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(a) Amending as a Matter of Course

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“A party may amend its pleading once as a matter of course

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within: (A) 21 days after serving it, or (B) . . . 21 days after

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service of a motion under Rule 12(b). . . .” Fed. R. Civ. P.

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15(a)(1). In all other cases, “a party may amend its pleading only

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with the opposing party’s written consent or the court’s leave.

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The court should freely give leave when justice so requires.”

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at (a)(2).

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Id.

More than 21 days have passed since plaintiff served the

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complaint on defendants on April 25, 2014. Additionally, 21 days

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have passed from the service of defendant’s motion to dismiss
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pursuant to rule 12(b) on July 10, 2014.

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Plaintiff asserts the stay entered by the court on July 23,

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2014, reset the clock for the 21 day window in which a plaintiff

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may amend its pleading as a matter of course. The court finds this

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assertion unavailing. When the court vacated the stay on November

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17, 2014, plaintiff had until November 27, 2014, to file an

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amendment as a matter of course.1 Plaintiff did not file an amended

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complaint until December 10, 2014, in response to defendants’

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motion to dismiss. Accordingly, plaintiff’s amended complaint

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cannot be filed pursuant to Fed. R. Civ. P. 15(a)(1).

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(b) Consent

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Plaintiff contends the court should permit the amendment under

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Fed. R. Civ. P. 15(a)(2), which requires the opposing party’s

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written consent or the court’s leave.

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The defendants have not given their consent; instead,

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defendants filed an opposition. Plaintiff seeks leave from the

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court to file the amended complaint.

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(c) Leave of Court

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Rule 15(a)(2) provides that leave to amend a complaint should

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be “freely given when justice so requires.”

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15(a)(2). “This policy is to be applied with extreme liberality.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th

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Cir. 2003).

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propriety of a motion for leave to amend.

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undue delay, prejudice to the opposing party, and futility of

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amendment.” Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007).

Fed. R. Civ. P.

“Four factors are commonly used to determine the
These are: bad faith,

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Three days were added pursuant to Fed. R. Civ. P. 6(d).

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(citations and internal quotation marks omitted). The factors are

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not to be given equal weight. Eminence Capital, 316 F.3d at 1052.

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Prejudice to the opposing party must be given the greatest weight.

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Id. Absent prejudice, or a strong showing of bad faith, undue

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delay, or futility of amendment, there exists a presumption under

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Rule 15(a) in favor of granting leave to amend. Id.

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The party opposing the amendment carries the burden of showing

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why leave to amend should not be granted. See DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 187 (9th Cir. 1987). The trial court has

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discretion to grant or deny leave to amend. See Cal. v. Neville

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Chem. Co., 358 F.3d 661, 673 (9th Cir. 2004).

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Defendants oppose plaintiff’s motion to amend, contending the

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amended complaint fails to add anything to the original complaint

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that is material to the issues raised in defendants’ motion to

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dismiss. The court agrees.

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Plaintiff’s motion summarily states, “[t]he Amended Complaint

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addresses both Defendants’ dismissal issues as well as the request

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for a more definite statement. The attached Amended Complaint

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contains certain statements that are in bold print to economically

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point out what was amended for the purpose of addressing the issues

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raised in Defendants’ motion.” Mot. #18 at 2:13-16. However, the

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added bold sections in the amended complaint are insufficient to

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justify granting the motion to amend. Consequently, the proposed

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amendment would be futile.

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Conclusion
Accordingly, and based on the foregoing, plaintiff’s motion
for leave to file an amended complaint (#20) is DENIED.
Plaintiff’s alternative motion to extend the time to respond
to defendant’s motion to dismiss is GRANTED.

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Plaintiff shall have until February 16, 2015, to file a

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response to defendants’ motion to dismiss (#5). Defendants shall

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have until February 25, 2015, to file any reply.

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IT IS SO ORDERED.
DATED: This 2nd day of February, 2015.

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____________________________

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UNITED STATES DISTRICT JUDGE

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