Hano v. State of Nevada

• Court: District Court, D. Nevada
• Decided: April 26, 2021
• Docket: 2:19-cv-02246
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 DAVID A. HANO, Case No. 2:19-cv-02246-GMN-EJY

4 Plaintiff ORDER 5 v.

6 STATE OF NEVADA, et al.,

7 Defendants.

8 9 Pending before the Court is Plaintiff’s Motion Seeking Permission to Add a Supplemental 10 Claim to this Action Pursuant to Rule 15(d) F.R.C.P. ECF No. 62. No opposition to this Motion 11 was filed by Defendants. 12 II. DISCUSSION 13 Rule 15(d) of the Federal Rules of Civil Procedure permits Plaintiff to “serve a supplemental 14 pleading setting out any transaction, occurrence, or event that happened after the date of the pleading 15 to be supplemented” on motion and reasonable notice. The goal of FRCP 15(d) is to promote judicial 16 efficiency. Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988). While courts “favor” supplemental pleading, id. at 473, Plaintiff cannot use Rule 15(d) to introduce a “separate, distinct and new cause 17 of action.” Berssenbrugge v. Luce Mfg. Co, 30 F. Supp. 101, 102 (D. Mo.1939); see also § 1509 18 Supplemental Pleadings—Time of Filing; Responsive Pleading, 6A Fed. Prac. & Proc. Civ. § 1509 19 (3d ed.) (noting that a court may deny leave to supplement “when the matters alleged in the 20 supplemental pleading could be the subject of a separate action.”). 21 The factors the Court evaluated to determine whether to grant a motion to supplement are 22 the same as those considered when the Court is presented with a motion to amend a complaint. Lyon 23 v. U.S. Immigration & Customs Enf’t, 308 F.R.D. 203, 214 (N.D. Cal. 2015). Thus, the five factors 24 most commonly used in evaluating a motion to supplement are: “(1) undue delay, (2) bad faith or 25 dilatory motive on the part of the movant, (3) repeated failure of previous amendments, (4) undue 26 prejudice to the opposing party, and (5) futility of the amendment.” Id. Among the factors, prejudice 27 to the opposing party carries the greatest weight. Id. 1 The Court notes that Local Rule 7-2(d) states, in pertinent part, that “The failure of an 2 opposing party to file points and authorities in response to any motion, …, constitutes a consent to 3 the granting of the motion.” Here, although no opposition to Plaintiff’s Motion was filed by 4 Defendants, Plaintiff fails to identify the facts and/or claims he seeks to add to his operative First 5 Amended Complaint. Therefore, the Court cannot determine if the supplementation requested 6 properly falls within Rule 15(d). 7 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion Seeking Permission to Add 8 a Supplemental Claim to this Action Pursuant to Rule 15(d) F.R.C.P. (ECF No. 62) is DENIED 9 without prejudice. 10 IT IS FURTHER ORDERED that Plaintiff may file a Renewed Motion to Supplement his 11 First Amended Complaint but must do so no later than May 25, 2021. 12 IT IS FURTHER ORDERED that if Plaintiff’s chooses to Refile his Motion to Supplement 13 his First Amended Complaint, Plaintiff must attach a copy of the Supplemented First Amended 14 Complaint to his Motion and identify in his Motion all those paragraphs or portions thereof in his 15 First Amended Complaint that he supplemented. 16 Plaintiff is advised to review Rule 8(a) of the Federal Rules of Civil Procedure, which 17 requires Plaintiff to state, as he has successfully done in his First Amended Complaint, a short plain 18 statement of his claims demonstrating that if he is successful in proving his claims he would be 19 entitled to relief. Every fact in support of a cause of action need not be stated in a complaint. 20 DATED this 26th day of April, 2021. 21 22

23 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28