Collins v. Collins et al

Filing 133

ORDER that Plaintiff's motion (ECF No. 132 ) is GRANTED, and the amended answer (ECF No. 127 ) is STRICKEN. Defendants have up to and including October 12, 2018, to file and serve a motion for leave to amend their answer. Plaintiff will have up to and including October 26, 2018 to file and serve a response. Defendants will then have up to and including November 2, 2018 to file and serve a reply brief. Signed by Magistrate Judge William G. Cobb on 9/27/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RONALD COLLINS,

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Case No. 3:16-cv-00111-MMD-WGC
Plaintiff,

ORDER

v.
JOSHUA COLLINS, et. al.,

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Defendants.

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On August 29, 2018, Plaintiff filed a motion for an order that claims three and four be

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admitted due to Defendants’ failure to deny them in their answer. (ECF No. 107.) Defendants

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filed a response stating that there was no Count III or Count IV in the Amended Complaint.

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(ECF No. 119.) Plaintiff filed a reply. (ECF No. 120.)

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On September 18, 2018, the court issued an order explaining to Defendants that Counts

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III and IV (labeled by Plaintiff as Count IIII) were part of the Amended Complaint, set forth at

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ECF Nos. 20-1 and 20-2, and that the Screening Order specifically discussed claims proceeding

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with respect to those counts. (ECF No. 122.) Since Defendants apparently overlooked those

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counts, the court gave them until September 25, 2018, to supplement their opposition to

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Plaintiff’s motion to have those counts admitted due to Defendants’ failure to address them in

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their answer. (Id.)

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On September 25, 2018, Defendants filed both an amended answer (ECF No. 127) and a

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supplemental response to Plaintiff’s motion (ECF No. 128). Defendants did not have leave to file

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an amended answer under Federal Rule of Civil Procedure. Nor did they make a good cause

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showing for exceeding the scheduling order deadline of April 16, 2018, to file an amended

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pleading or motion for leave to amend a pleading. (ECF No. 45.) In addition, the supplemental

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response to Plaintiff’s motion contains only a brief, and vague explanation for the failure to

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address the claims.

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As the court was preparing this order, Plaintiff filed a motion to strike the answer as

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untimely. (ECF No. 132.) The court agrees with Plaintiff that the amended answer was filed

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without leave of court, and is untimely.

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Therefore, Plaintiff’s motion (ECF No. 132) is GRANTED, and the amended answer

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(ECF No. 127) is STRICKEN. Defendants have up to and including October 12, 2018, to file

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and serve a motion for leave to amend their answer which comports with Federal Rule of Civil

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Procedure 15, Local Rule 15-1 (which requires the proposed amended pleading to be attached),

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and must satisfy the good cause standard required when a party seeks to file an amended

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pleading or motion for leave to amend a pleading outside of the scheduling order deadline.

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Plaintiff will have up to and including October 26, 2018 to file and serve a response. Defendants

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will then have up to and including November 2, 2018 to file and serve a reply brief.

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IT IS SO ORDERED.

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DATED: September 27, 2018

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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