Gerald Peters Gallery, Inc., et al. VS. Peter Stremmel, et al.

Filing 37

ORDER granting ECF No. 34 Motion for Leave to Amend; revised amended complaint due within (7) days; ECF No. 20 Motion to Dismiss is denied as moot; Court vacates the hearing set for 11/08/2017 ECF No. 35 . Signed by Judge Miranda M. Du on 10/30/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 9 GERALD PETERS GALLERY, INC., a New Mexico corporation, and GERALD PETERS, 10 Case No. 3:17-cv-00273-MMD-VPC ORDER Plaintiff, v. 11 12 13 PETER STREMMEL, STREMMEL GALLERIES, LTD., a Nevada corporation, MIKE OVERBY, and COEUR D’ALENE ART AUCTION OF NEVADA, L.L.C., a Nevada corporation, 14 Defendants. 15 16 There are two motions before the Court: Defendants’ motion to dismiss (“Motion 17 to Dismiss”) (ECF No. 20) and Plaintiff’s motion for leave to file first amended complaint 18 (“Motion to Amend”) (ECF No. 34). Because the Court grants the Motion to Amend, the 19 Motion to Dismiss is denied as moot. 20 Once a responsive pleading has been filed, “a party may amend its pleading only 21 with the opposing party's written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 22 “The court should freely give leave when justice so requires.” Id. “The decision of whether 23 to grant leave to amend nevertheless remains within the discretion of the district court, 24 which may deny leave to amend due to ‘undue delay, bad faith or dilatory motive on the 25 part of the movant, repeated failure to cure deficiencies by amendments previously 26 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, 27 [and] futility of amendment.’” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 28 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 1 Defendants argue that amendment is futile because the proposed amended 2 complaint seeks to add a new legal theory based on the same facts and does not cure 3 the deficiencies identified in the Motion to Dismiss. (ECF No. 36.) However, the Court has 4 not ruled on Defendants’ Motion to Dismiss.1 Under the circumstances here and given 5 the liberal amendment standard under Rule 15(a), the Court finds that amendment is not 6 futile 7 It is therefore ordered that Plaintiff’s motion for leave to amend (ECF No. 34) is 8 granted. The Court grants Plaintiff leave to file a revised amended complaint to cure the 9 deficiencies identified in the Motion to Dismiss should Plaintiff wish to do so within seven 10 (7) days. It is further ordered that Defendants’ motion to dismiss (ECF No. 20) is denied as 11 12 13 moot. The Court vacates the hearing set for November 8, 2017 (ECF No. 35). 14 DATED THIS 30th day of October 2017. 15 16 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 1Nevertheless, Plaintiff should be given the opportunity to cure the deficiencies identified in the Motion to Dismiss to avoid having to defend a second motion to dismiss. Because the Court grants leave to amend, leave will not be given in the event Defendants filed a second motion to dismiss and the Court were to agree with Defendants. 2

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