Opinion
No. CV-11-1343-PHX-PGR (LOA)
05-21-2012
Jonathan C. Bertanelli, Plaintiff, v. Charles L. Ryan, et al., Defendants.
ORDER
This matter is before the Court on Plaintiff's Motion for Leave to Leave to File First Amended Complaint, doc. 38. Defendant Ryan opposes the motion, doc. 40. Federal Rule of Civil Procedure 15 governs the amendment of complaints. Because Plaintiff's motion for leave to amend was filed more than 21 days after Defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b), and Defendant opposes amendment, Plaintiff needs leave to amend his complaint. Fed.R.Civ.P. 15(a)(1)(B); docs. 28. Although Rule 15(a)(2) provides that leave to amend should be freely given "when justice so requires," Plaintiff must also comply with Local Rule of Civil Procedure Local 15.1. As the Court has previously advised Plaintiff, Local Rule 15.1 provides, in relevant part, that:
A party who moves for leave to amend a pleading . . . must attach a copy of the proposed amended pleading as an exhibit to the motion . . . which must indicate in what respect if differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added. The proposed amended pleading is not to incorporate by reference any part of the preceding pleading, including exhibits.LRCiv 15.1(a).
In his motion, Plaintiff copies portions of his original complaint and uses brackets to identify it as text that is deleted from the original complaint. (Doc. 38 at 2-3) Plaintiff further explains that to identify text that is added to the first amended complaint, his motion contains such additional text which is underlined. (Doc. 38 at 3-5) Although Plaintiff's motion to amend identifies text to be added or deleted by way of amendment, his proposed First Amended Complaint does not which hinders the Court's ability to compare the original and proposed amended complaint. (Doc. 38, attachment) Although Plaintiff has attempted to comply with Local Rule of Civil Procedure 15.1, his attempt falls short. As Defendant notes, the manner in which Plaintiff presents his proposed amendments makes it difficult to compare the original and amended complaint. In view of Plaintiff's failure to comply with Local Rule of Civil Procedure 15.1(a), the Court will deny his motion for leave to amend. If Plaintiff seeks to amend his complaint, he must submit a "proposed amended pleading as an exhibit to the motion. . . which must indicate in what respect if differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added." LRCiv 15.1(a). It is not sufficient to identify the added or deleted text in a supporting motion, rather the changes must be indicated on the proposed amended pleading itself.
Thus, the Original Complaint stands, as does Defendant's Motion to Dismiss that Complaint, doc. 28. Accordingly, the Court will deny Plaintiff's Motion for Court Order Not to Respond to Defendants' Motion to Dismiss. (Doc. 39) The Court has previously extended the deadline for Plaintiff to respond to the motion to dismiss to May 11, 2012. In an abundance of caution, the Court will extend the deadline for Plaintiff to respond to the Motion to Dismiss to June 4, 2012. In view of the denial of Plaintiff's motion for leave to amend, his related "Motion in Opposition to the Court's anticipated pre-screening order Dismissing Plaintiff's Policy Claim," doc. 42, is moot and will be denied as such.
Accordingly,
IT IS ORDERED that Plaintiff's Motion for Leave to File First Amended Complaint, doc. 38, is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff's "Motion in Opposition to the Court's anticipated pre-screening order Dismissing Plaintiff's Policy Claim," doc. 42, is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff's Motion for Court Order Not to Respond to Defendant's Motion to Dismiss, doc. 39, is DENIED.
IT IS FURTHER ORDERED that the deadline for Plaintiff to file a response to Defendant's Motion to Dismiss, doc. 28, is extended to June 4, 2012.
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Lawrence O. Anderson
United States Magistrate Judge