Opinion
Civil Action No. 06-cv-01610-EWN-CBS.
March 16, 2007
ORDER
This civil action comes before the court on: (1) Plaintiff Finley's Motion for Service of Process by United States Marshal (filed January 26, 2007) (doc. # 24); (2) Plaintiff Finley's Motion for Leave to File an Amended Complaint (filed January 26, 2007) (doc. # 23), and (3) Plaintiff Finley's "Motion for Leave to File and Amended Complaint" (filed March 9, 2007) (doc. # 37). Pursuant to the Order of Reference dated September 8, 2006 (doc. # 9) and the memoranda dated January 29, 2007 (doc. # 25) and March 9, 2007 (doc. # 38), these matters were referred to the Magistrate Judge.
First, Mr. Finley asks the court to order the United States Marshal "to serve a copy of the First Set of Interrogatories" and "Motion for Leave to File an Amended Complaint . . . upon defendant Correctional Health Care Management. . . ." Mr. Finley is obligated to serve these materials on the Defendant by mail and is not entitled to service of these materials by the U.S. Marshal.
Second, Mr. Finley seeks to add "Sheriff Ted Mink of Jefferson County, in his individual and personal capacity" as a Defendant in this civil action. ( See docs. # 23 and # 37). Defendant Correctional Healthcare Management ("CHM") has responded that it does not object to Mr. Finley's request "to name another Defendant." ( See doc. # 32). CHM does object to "add[ing] claims against CHM or add[ing] parties associated with CHM." ( See doc. # 32).
As CHM has filed an Answer ( see doc. # 14), Mr. Finley may amend his Complaint "only by leave of court or by written consent of the adverse party. . . ." Fed.R.Civ.P. 15(a). The court may deny a motion to amend a complaint for failure to submit the proposed amendment. See Zaidi v. Ehrlich, 732 F.2d 1218, 1220 (5th Cir. 1984) (district court should have held motion to amend in abeyance pending submission of plaintiff's proposed amendment); Bownes v. City of Gary, Indiana, 112 F.R.D. 424, 425 (N.D. Ind. 1986) ("common sense" dictates that a party seeking leave to amend should accompany his motion with a copy of the proposed amended complaint); Williams v. Wilkerson, 90 F.R.D. 168, 170 (E.D. Va. 1981) (where plaintiff sought leave to amend, a copy of the proposed amended pleading must be attached to the motion).
Mr. Finley has not attached a copy of a proposed Amended Complaint to either of his Motions to Amend. On February 22, 2007, the court held Mr. Finley's first Motion to Amend in abeyance for Mr. Finley "to submit a complete copy of his proposed Amended Complaint to the court and to Defendants on or before March 15, 2007." ( See doc. # 33 at p. 2). As of this date, Mr. Finley has not submitted to the court a copy of his proposed Amended Complaint.
Accordingly,
IT IS ORDERED that:
1. Plaintiff Finley's Motion for Service of Process by United States Marshal (filed January 26, 2007) (doc. # 24) is DENIED. Finley is responsible for mailing copies of motions and discovery to counsel for the other parties in the case.
2. Plaintiff Finley's Motion for Leave to File an Amended Complaint (filed January 26, 2007) (doc. # 23) is DENIED without prejudice for failure to submit a copy of the proposed Amended Complaint.
3. Plaintiff Finley's "Motion for Leave to File and Amended Complaint" (filed March 9, 2007) (doc. # 37) is DENIED without prejudice for failure to submit a copy of the proposed Amended Complaint.