Burns v. Cox et al

Filing 82

ORDER - Plaintiff's Motion (ECF No. 53 ) is DENIED. This action is proceeding on the Second Amended Complaint (ECF No. 41 ) as outlined in the Court's Order (ECF No. 40 ). Signed by Magistrate Judge William G. Cobb on 5/21/2020. (Copies have been distributed pursuant to the NEF - AB)

Case 3:18-cv-00231-MMD-WGC Document 82 Filed 05/21/20 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No.: 3:18-cv-00231-MMD-WGC
DAVID BURNS,

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Order
Plaintiff,

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Re: ECF No. 53
v.

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JESSE COX, et al.,
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Defendants.
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Before the court is Plaintiff's motion seeking leave to file a third amended complaint
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(TAC) (ECF No. 53) and proposed third amended complaint (ECF No. 48). Defendants filed a
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notice indicating they do not oppose the motion, except that the TAC still names defendant Clay,
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who was already dismissed from this action.
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“A party may amend its pleading once as a matter of course within: (A) 21 days after
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serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after
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service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
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whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a party must seek the opposing
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party’s written consent or leave of court to amend a pleading. Fed. R. Civ. P. 15(a)(2).
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“The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
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Leave to amend need not be given where amendment: “(1) prejudices the opposing party; (2) is
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sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Amerisource Bergen
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Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation omitted).
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The proposed TAC is identical to the second amended complaint (SAC) (ECF No. 41),
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except that it changes the amount of damages sought in the prayer for relief. This is the second

Case 3:18-cv-00231-MMD-WGC Document 82 Filed 05/21/20 Page 2 of 2

1 time Plaintiff has sought to amend his complaint just to change the amount of damages he seeks
2 in his prayer for relief. The court finds that amendment is not required simply to change the amount
3 of damages sought when the categories of damages sought remain the same. Plaintiff's recovery
4 of damages at trial are subject to proof at that time, and Plaintiff will not be limited to the amount
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Therefore, Plaintiff's motion (ECF No. 53) is DENIED. This action is proceeding on the

8 SAC (ECF No. 41) as outlined in the court's order at ECF No. 40.
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IT IS SO ORDERED.

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Dated: May 21, 2020.

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_________________________________
William G. Cobb
United States Magistrate Judge

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