Frank La Pena v. LVMPD, et al.

Opinion

* * *

FRANK LA PENA, Case No.2:21-CV-2170 JCM (NJK)

Plaintiff(s), AMENDED ORDER v.

LVMPD, et al.,

Defendant(s).

Presently before the court is defendants Las Vegas Metropolitan Police Department’s (LVMPD) and Michele Whitney’s motion to dismiss. (ECF No. 172). Plaintiff Frank LaPena filed a response (ECF No. 177), to which defendants replied (ECF No. 181). Lynn Avants moves the court to join the reply. (ECF No. 182). Plaintiff and defendants ask the court for leave to exceed the page limit. (ECF Nos. 171, 178). This is a wrongful conviction action. The procedural history of this case is complex, so the court will highlight only what is relevant to the pending motions. The court granted the second motion to dismiss by defendants Jerry Keller, LVMPD, and Michele Whitney on March 29, 2024. (ECF No. 159). The appeal deadline passed without action from plaintiff. Five months later, Lisa A. Rasmussen moved to withdraw as the plaintiff’s attorney. (ECF Nos. 162, 163). The court granted the motion to withdraw on August 12, 2024, (ECF No. 164), and was not informed that plaintiff retained new counsel until May 8, 2025. (ECF Nos. 168, 169). The day after filing notices of appearance, plaintiff’s new counsel filed a second amended complaint against defendants LVMPD, the Estate of Beecher Avants, O.R. Lyons, and Michele Whitney, thereby initiating new action in this case. (ECF No. 170). Defendants LVMPD and Michele Whitney thereafter filed a motion to dismiss the second amended complaint. (ECF No. 172). An amended complaint filed “without leave of court as required under Rule 15…has no legal effect.” Garcia v. Las Vegas Metro. Police Department, 2019 WL 652998, 2019 U.S. Dist. LEXIS 24775 at *6 (D. Nev. Feb. 15, 2019) (citing Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644 (D. Nev. 1995)). The court granted the defendants’ second motion to dismiss on March 29, 2024. (ECF No. 159). Although the court dismissed the plaintiff’s claims against defendants without prejudice, the court’s order did not grant plaintiff leave to amend his complaint. (Id.) The defendants also did not give written permission for plaintiff to amend his complaint (and clearly still object to his doing so). The court therefore finds that plaintiff improperly filed the second amended complaint, and such complaint has no legal effect. See Garcia, 2019 U.S. Dist. LEXIS 24775, at *6. The court intended the March 2024 dismissal to be a final order. This is supported by the fact that the court did not grant leave to amend. See Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987) (“Failure to allow leave to amend supports an inference that the district court intended to make the order final.”). Further supporting this court’s intent that the March 29, 2024, motion to dismiss be final is its instruction to the clerk of court to “terminate the foregoing defendants from the case as no claims remain against them.” (ECF No. 159 at 6). Because the order was final, plaintiff’s appropriate avenues for relief would be to appeal the order or to move the court to reconsider it under FRCP 60. It has been more than a year since the court—long since the dispositive deadlines for reconsideration and appeal—and plaintiff has failed to pursue either of these options. (ECF No. 172 at 20); see FRCP 60; Fed. R. App. P. 4. Rather, plaintiff improperly filed a second amended complaint without leave of court. The court will not allow it to stand—it shall be stricken from the record, and the case shall be closed. I. Conclusion Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s second amended complaint (ECF No. 170) be, and the same hereby is, STRICKEN from the record. The clerk of court is instructed to terminate all defendants and close the case. IT IS FURTHER ORDERED that defendant’s motion to dismiss (ECF No. 172) be, and the same hereby is, DENIED as MOOT. IT IS FURTHER ORDERED that defendant’s motion for leave to file excess pages (ECF No. 171) be, and the same hereby is, DENIED as MOOT. IT IS FURTHER ORDERED that plaintiff’s motion for leave to file excess pages (ECF No. 178) be, and the same hereby is, DENIED as MOOT. IT IS FURTHER ORDERED that non-party Lynn Avants’ motion to join defendants’ reply (ECF No. 182) be, and the same hereby is, DENIED as MOOT. DATED October 7, 2025.. ______________________________________ UNITED STATES DISTRICT JUDGE