Entrust Retirement Trust XV - Dwight Carlson, Trustee v. Donner Creek Village Condominium Association et al

Filing 28

ORDER that Plaintiff's motion for leave to file an amended complaint ECF No. 24 is GRANTED; Plaintiff to file amended complaint by 12/22/2017; Defendants' motion to dismiss ECF No. 22 is DENIED without prejudice. Signed by Judge Larry R. Hicks on 12/12/2017. (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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ENTRUST RETIREMENT TRUST XV –
DWIGHT CARLSON, TRUSTEE;

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Plaintiff,

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Case No. 3:17-cv-0490-LRH-(VPC)

v.

ORDER

DONNER CREEK VILLAGE
CONDOMINIUM ASSOCIATION; et al.,
Defendants.

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Before the court is plaintiff Entrust Retirement Trust XV’s (“Entrust”) motion for leave

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to file an amended complaint. ECF No. 24. Defendants U.S. Department of Housing and Urban

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Development (“HUD”) and Ben Carson (“Carson”), in his capacity as Secretary of HUD, filed a

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non-opposition to Entrust’s motion. ECF No. 26.

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A party may amend its pleadings by leave of court. FED. R. CIV. P. 15(a)(2). Leave of

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court to amend should be freely given when justice so requires and when there is no undue delay,

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bad faith, or dilatory motive on the part of the moving party. See Wright v. Incline Village

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General Imp. Dist., 597 F.Supp.2d 1191 (D. Nev. 2009); DCD Programs, LTD v. Leighton, 883

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F.2d 183 (9th Cir. 1987).

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Here, Entrust requests leave to amend its complaint to substitute appropriate parties
including the United States for incorrectly named defendants HUD and Carson. See ECF No. 24.

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A copy of the proposed amended complaint is attached to the motion in accordance with LR 15-

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1(a). Doc. #24, Exhibit 1.

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The court has reviewed Entrust’s motion, along with the proposed amended complaint,

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and finds that there is no undue delay, bad faith, or dilatory motive on behalf of Entrust in

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requesting leave to amend the complaint. Further, the court finds that the matter is early in

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discovery and that defendants would not be prejudiced by allowing amendment. Accordingly, the

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court shall grant Entrust’s motion for leave to file an amended complaint.

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The court recognizes that HUD and Carson have previously filed a motion to dismiss.
ECF No. 22. However, the filing of the amended complaint supersedes the original complaint in

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its entirety. Further, the amended complaint substitutes the United States as the proper party in

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lieu of HUD and Carson. Thus, defendants’ motion to dismiss the complaint is now moot and the

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court shall deny the motion accordingly.

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IT IS THEREFORE ORDERED that plaintiff’s motion for leave to file an amended

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complaint (ECF No. 24) is GRANTED. Plaintiff Entrust Retirement Trust XV shall have ten (10)

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days after entry of this order to file the proposed amended complaint attached as Exhibit 1 to

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plaintiff’s motion (ECF No. 24, Ex. 1).

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IT IS FURTHER ORDERED that defendants’ motion to dismiss (ECF No. 22) is
DENIED without prejudice.

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IT IS SO ORDERED.

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DATED this 12th day of December, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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