Opinion
CASE NO. 2:18-cv-00746-MJP-BAT
10-16-2018
JOE J.W. ROBERTS, JR., Plaintiff, v. VILMA KHOUNPHIXAY, et al., Defendants.
ORDER DENYING MOTION TO AMEND COMPLAINT WITHOUT PREJUDICE
Before the Court is Plaintiff's motion "requesting to amend under Rule 15(a)." Dkt. 40. Plaintiff has not attached a copy of his proposed amended complaint. In addition, Plaintiff does not address how his undisclosed amendment moots Defendants' pending motion for judgment on the pleadings (Dkt. 33) or Defendants' request for a protective order staying discovery pending adjudication of the motion for judgment on the pleadings (Dkt. 35). Accordingly, Plaintiff's motion to amend is denied without prejudice.
DISCUSSION
Pursuant to Rule 15(a)(1) Plaintiff may only amend as a matter of right, "21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Defendants served their Answer on August 13, 2018. Dkt. 21, at 1. Plaintiff filed his Motion to Amend on October 5, 2018 (Dkt. 40) - that is more than 21 days after August 13, 2018. Thus, Plaintiff is not eligible by rule to amend without a Court order. In addition, a party who moves for leave to amend, must attach a copy of the proposed amended pleading as an exhibit to his motion. The party must indicate on the proposed amended pleading how it differs from the pleading that he is amending by bracketing or striking through the text to be deleted and underlining or highlighting the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits. LCR 15.
Moreover, Defendants correctly note they would be entitled to qualified immunity from suit (including all discovery) even if Plaintiff can state a claim sufficient to defeat their motion for judgment on the pleading, if the Court determines that there is no clearly established law proscribing their conduct. Therefore, the Court, under separate Order, has granted Defendants' motion for protective order staying all discovery pending adjudication of Defendants' motion for judgment on the pleadings. If Defendants' motion is denied, the stay of discovery will be lifted and a new discovery deadline will be assigned to the parties.
Based on the foregoing, Plaintiff's motion to amend (Dkt. 40) is DENIED without prejudice. If Plaintiff wishes to amend his complaint, he must provide the Court and Defendants with a proposed amended pleading consistent with LCR 15.
DATED this 16th day of October, 2018.
/s/_________
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge