United States District Court, D. Nevada
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Jackson Hole Bank
Fraud Litigation Trust's failure to comply with the
Court's previous Orders (ECF Nos. 11 and 27) requiring it
to retain an attorney. Plaintiff's court-ordered deadline
for doing so was originally set for July 12, 2019 (ECF No.
11) and then extended to July 31, 2019 (ECF No. 27). To date,
Plaintiff has not complied with the Orders by retaining
counsel. Instead, Plaintiff has continued to file various
documents despite the fact the Court advised it that a trust
cannot represent itself and must be represented by an
attorney. C.E. Pope Equity Trust v. U.S. 818 F.2d
696, 697 (9th Cir. 1987) (stating that a non-attorney trustee
cannot represent a trust); Alpha Land Co. v. Little,
238 F.R.D. 497, 502 (E.D. Cal. 2006) (stating that a trust
must be represented by an attorney).
the following motions have been filed by Plaintiff while
acting without counsel: Motion to Amend the Complaint (ECF
No. 20), Motion for Partial Summary Judgment (ECF No. 28),
Motion to Extend Time (ECF No. 35), Motion for
Reconsideration (ECF No. 41), Motion for Sanctions (ECF No.
42), Motion for Default Judgment (ECF No. 43), Motion to
Strike (ECF No. 53), Motion for Extension of Time (ECF No.
55), Motion to Strike (ECF No. 56), and Motion for Extension
of Time (ECF No. 59).
27, 2019, the Court issued an Order to Show Cause why
sanctions should not be imposed against Plaintiff for failure
to comply with the Court's previous Order ECF No. 11 and
retain counsel. Plaintiff filed a response that indicated it
filed an amended complaint on July 15, 2019 that substituted
an individual, Richard Friedman, for the trust (ECF No. 20).
Plaintiff contends that under Federal Rule of Civil Procedure
15(a)(1)(A) it may amend its complaint once as a matter of
course within 21 days after serving it and therefore, the
individual may proceed with this case pro se and is
substituted in for the trust.
party may amend its pleading once as a matter of course
within: (a) 21 days after serving it, or (b) . . . 21 days
after service of a motion under Rule 12(b) . . .”
Fed.R.Civ.P. 15(a)(1). In all other cases, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” Id. at
Defendants were served as follows: Estate of Robert Biolchini
on June 24, 2019 (ECF No. 6), Charles Hingle on June 25, 2019
(ECF No. 5), Patricia E. Lane on June 26, 2019 (ECF No. 10),
Bank of Jackson Hole on June 26, 2019 (ECF No. 13), Pete
Lawton on June 26, 2019 (ECF No. 13), David W. Perino on June
27, 2019 (ECF No. 13), Dennis O'Malley on June 28, 2019
(ECF No. 4), John Smiley on June 28, 2019 (ECF No. 14),
Colleen Lane on July 18, 2019 (ECF No. 23). Plaintiff filed
his amended complaint, albeit as a motion for leave to file
an amended complaint, on July 15, 2019 (ECF No. 20). That was
within 21 days of the first service on a defendant on June
24, 2019. As such, Plaintiff had the right to amend the
complaint as a matter of course and need not have requested
permission to amend. On that basis, the Court will grant the
motion pursuant to Rule 15(a)(1)(a).
alternatively requests an extension of time for 60 days to
obtain legal representation for the trust. Given that the
Court finds the amended complaint is to be filed pursuant to
Rule 15(a)(1)(a), it will deny this alternative request as
the trust does not remain in the case.
filed a response to the motion to amend the complaint (ECF
No. 46). They claim that Plaintiff's complaint contains
numerous deficiencies that warrant complete dismissal
including on subject matter jurisdiction, personal
jurisdiction and claim and issue preclusion grounds. However,
Defendants cite to rule 15(a)(2) as applying to the amended
complaint, which requires leave of the court to file the
amended complaint. They do not address the standard under
Rule 15(a)(1) that grants Plaintiff leave to amend as a
matter of course. Therefore, while the Court may consider
Defendants' arguments on the merits at a later date if
they are refiled in response to the amended complaint, they
do not warrant denying Plaintiff's right to amend under
Plaintiff requests an extension of time to reply to
Defendants' response to his motion to amend (ECF No. 59).
The Court finds no further briefing by Plaintiff is necessary
on this issue as it is granting the amendment and denies that
request. Plaintiff also requests that the Court strike
Defendants' response brief, but fails to cite to proper
points and authorities to justify the Court striking a brief
as opposed to a pleading under Rule 12(f). Therefore,
Plaintiff's Motion to Strike Defendants' response
brief (ECF No. 56) is denied.
IT IS HEREBY ORDERED that Plaintiff's Motion to Amend the
Complaint (ECF No. 20) is granted. Plaintiff
shall file and serve the amended complaint in accordance with
Local Rule 15-1(b).
FURTHER ORDERED that Plaintiff's Motion to Extend Time
(ECF No. 35) is denied.
FURTHER ORDERED that Plaintiff's Motion to Strike
Defendants' Response ...