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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GERALD PETERS GALLERY, INC., a
New Mexico corporation, and GERALD
PETERS,

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Case No. 3:17-cv-00273-MMD-VPC
ORDER

Plaintiff,
v.

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PETER STREMMEL, STREMMEL
GALLERIES, LTD., a Nevada corporation,
MIKE OVERBY, and COEUR D’ALENE
ART AUCTION OF NEVADA, L.L.C., a
Nevada corporation,

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Defendants.
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There are two motions before the Court: Defendants’ motion to dismiss (“Motion

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to Dismiss”) (ECF No. 20) and Plaintiff’s motion for leave to file first amended complaint

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(“Motion to Amend”) (ECF No. 34). Because the Court grants the Motion to Amend, the

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Motion to Dismiss is denied as moot.

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Once a responsive pleading has been filed, “a party may amend its pleading only

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with the opposing party's written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

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“The court should freely give leave when justice so requires.” Id. “The decision of whether

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to grant leave to amend nevertheless remains within the discretion of the district court,

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which may deny leave to amend due to ‘undue delay, bad faith or dilatory motive on the

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part of the movant, repeated failure to cure deficiencies by amendments previously

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allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,

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[and] futility of amendment.’” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532

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(9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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Defendants argue that amendment is futile because the proposed amended

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complaint seeks to add a new legal theory based on the same facts and does not cure

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the deficiencies identified in the Motion to Dismiss. (ECF No. 36.) However, the Court has

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not ruled on Defendants’ Motion to Dismiss.1 Under the circumstances here and given

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the liberal amendment standard under Rule 15(a), the Court finds that amendment is not

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futile

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It is therefore ordered that Plaintiff’s motion for leave to amend (ECF No. 34) is

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granted. The Court grants Plaintiff leave to file a revised amended complaint to cure the

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deficiencies identified in the Motion to Dismiss should Plaintiff wish to do so within seven

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(7) days.
It is further ordered that Defendants’ motion to dismiss (ECF No. 20) is denied as

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moot.
The Court vacates the hearing set for November 8, 2017 (ECF No. 35).

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DATED THIS 30th day of October 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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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.
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