Toho Tenax America, Inc. v. Linde, Inc. (TV2)

Filing 29

MEMORANDUM AND ORDER granting 28 First MOTION for Leave to File Supplemental Complaint filed by Toho Tenax America, Inc. Plaintiff shall file its proposed, amended complaint 28 in the record on or before 8/27/2013. When the proposed complaint is filed its substance shall remain the same, but it shall be labeled: "Second Amended Complaint for Declaratory Judgment." Signed by Magistrate Judge H Bruce Guyton on 8/20/2013. (JDH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TOHO TENAX AMERICA, INC.,
Plaintiff,
v.
LINDE, INC.,
Defendant.

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No. 3:12-CV-157
(VARLAN/GUYTON)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02. Now before the Court is Defendant’s Motion for Leave to File
Supplemental Complaint [Doc. 28].
Plaintiff moves the Court to allow it to amend the Complaint to add events that have
transpired since its first Amended Complaint was filed on June 26, 2012. Plaintiff has attached a
copy of the proposed Supplemental Complaint for Declaratory Judgment [Doc. 28-1], to its
motion.
The Court finds, first, that no party has responded in opposition to the Motion for Leave
to File Supplemental Complaint, and the time for doing so has expired. See E.D. Tenn. L.R.
7.1(a), Fed. R. Civ. P. 6(d), 5(b)(2)(E). The Court may treat the lack of opposition during the
time allowed under the rule as acquiescence to the relief sought. See E.D. Tenn. L.R. 7.2; see
also Campbell v. McMinn County, 2012 WL 369090 (E.D. Tenn. 2012).

Second, the Court finds that the Plaintiff has made a sufficient showing to support
affording leave to amend under Rule 15 of the Federal Rules of Civil Procedure. See Fed. R.
Civ. P. 15(a) (“The court should freely give leave when justice so requires.”).
Finally, the Court finds that the Plaintiff has complied with Local Rule 15.1 in making its
request.
The Court finds, however, that the Plaintiff has mislabeled its proposed amended
complaint as a “Supplemental Complaint” rather than an “Amended Complaint.” It appears to
the Court that the proposed pleading incorporates the Plaintiff’s pleadings in total.

It is,

therefore, not a supplemental complaint. Instead, it is an amended complaint, and to insure
clarity of the record, it should be labeled as such. The Plaintiff will label the proposed complaint
as “Amended,” not “Supplemental,” when it is filed in the record.
Based upon the foregoing, the Motion for Leave to File Supplemental Complaint [Doc.
28] is GRANTED. Plaintiff shall file its proposed, amended complaint [Doc. 28-1] in the record
on or before August 27, 2013. When the proposed complaint is filed its substance shall remain
the same, but it shall be labeled: “Second Amended Complaint for Declaratory Judgment.”
IT IS SO ORDERED.
ENTER:
s/ H. Bruce Guyton
United States Magistrate Judge

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