United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court are Magistrate Judge Foley's report and recommendation. (Doc. #4). Pro se plaintiff Bill Lietzke has not filed an objection and the deadline to do so has passed.
Also before the court are plaintiff Bill Lietzke's motion for leave to proceed in forma pauperis (doc. #5) and motion for waiving service of summons (doc. #7).
This matter commenced on June 10, 2013, with the filing of plaintiff Lietzke's complaint and motion/application to proceed in forma pauperis. (Doc. #1). The court granted plaintiff's motion to proceed in forma pauperis and also dismissed the complaint, without prejudice, for jurisdictional deficiencies. The court ordered plaintiff to file an amended complaint by January 5, 2014. Notice was mailed to plaintiff on December 9, 2013.
On September 12, 2014, the magistrate judge submitted a report and recommendation that plaintiff's complaint be dismissed with prejudice. Plaintiff had failed to file an amended complaint as instructed by the court, and more than nine months had elapsed since the deadline. Plaintiff did not file any objections to the report and recommendation.
On October 15, 2014, plaintiff suddenly filed two new motions - one to proceed in forma pauperis, and one to waive service of summons. (Docs. ##5, 7). Plaintiff also filed an amended complaint. (Doc. #6).
a. Plaintiff's amended complaint (doc. #6)
Federal Rule of Civil Procedure 15(a) allows a party to amend its pleading once as a matter of course within 21 days after serving it, or with written consent from the opposing party or with the court's leave. Fed.R.Civ.P. 15(a).
Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." The Supreme Court has interpreted Rule 15(a) and confirmed the liberal standard district courts must apply when granting such leave. In Foman v. Davis, 371 U.S. 178 (1962), the Court explained: "In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.-the leave sought should, as the rules require, be freely given.'" Id. at 182. The local rules of federal practice in the District of Nevada require that a party submit a proposed, amended pleading along with a motion to amend. D. Nev. R. 15-1(a).
Here, plaintiff far exceeded the 21-day amendment window provided by Rule 15. Plaintiff filed his untimely amended complaint (doc. #6) more than nine months after the magistrate judge's January 5, 2014 deadline.
Plaintiff did not request or attain written consent from the opposing party, or leave from the court to amend his complaint. Instead, plaintiff merely submitted an amended complaint more than nine months after the initial deadline provided by the court. Though leave to amend "shall be freely given when justice so requires, " the plaintiff's ten month delay and failure to respond to court orders and requests for objections demonstrate undue delay and potential dilatory motive. Therefore, plaintiff's filing of his amended complaint is procedurally improper and should be struck.
Additionally, even if plaintiff's filing of his amended complaint was procedurally proper, the court, construing pro se plaintiff's complaint liberally, finds that the amended complaint fails to cure jurisdictional deficiencies. Therefore, the court strikes plaintiff's amended complaint (doc. ...