Landis v. Tailwind Sports Corporation

• Court: District Court, District of Columbia
• Decided: January 2, 2014
• Docket: Civil Action No. 2010-0976
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ex rel. FLOYD LANDIS,

Plaintiffs, Civil Action No. 10-cv-00976 (RLW) v.

TAILWIND SPORTS CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This memorandum opinion and order addresses the relator’s conditional motion to amend

his complaint (Dkt. No. 140), Defendants Thomas W. Weisel and Ross Investments, Inc.’s

motion to strike the relator’s conditional motion to amend his complaint (Dkt. No. 142), and the

relator’s reply thereto (Dkt. No. 143).

The conditional motion to amend filed by the relator is clearly in the nature of an

unauthorized surreply. Generally speaking, if a plaintiff seeks to meet a motion to dismiss by

filing an amended complaint, then the plaintiff should file a motion to amend his complaint

pursuant to Fed. R. Civ. P. 15(a), rendering the motion to dismiss moot, or at least allowing the

proposed amendment to be considered simultaneously with the motion to dismiss. Having failed

to do so in this case, the relator has filed an eleventh hour “conditional” motion to amend his

complaint. This conditional motion is essentially an improper surreply, because it makes

additional arguments about why the motion to dismiss should not be granted, indeed citing and

referring at length to the already-filed second amended complaint. This belated attempt to inject

new arguments before the Court about the propriety of the second amended complaint, following full briefing and oral argument on the motions to dismiss that very complaint, is improper. It is

also improper for the relator to seek to have the Court issue an advisory ruling on the legal

sufficiency of a “draft” or “conditional” amended complaint. The Court does not make advisory

rulings, see Golden v. Zwickler, 394 U.S. 103 (1969), nor does the Court entertain moving

targets, see Schoenman v. F.B.I., 575 F. Supp. 2d 166, 173 (D.D.C. 2008) (“Simply put, this case

is not a game and Plaintiff's briefing should not be a moving target …”). The Court is aware that

the relator seeks leave to amend if any of the motions to dismiss are granted, and the Court will

address that request, if necessary, at the appropriate time. Accordingly, it is hereby

ORDERED that Defendants’ Motion to Strike is hereby GRANTED; and it is further

ORDERED that the Conditional Motion to Amend is STRICKEN from the record.

SO ORDERED.

Digitally signed by Judge Robert L. Wilkins DN: cn=Judge Robert L. Wilkins, o=U.S. District Court, ou=Chambers of Honorable Robert L. Wilkins, email=RW@dc.uscourt.gov, c=US Date: 2014.01.02 15:21:52 -05'00' Date: January 2, 2014 ROBERT L. WILKINS United States District Judge