Opinion
Case No. 5:17-cv-00052-oC-34PRL
10-19-2017
Scotty King, Individually and as Personal Representative of the Estate of Kimberly King, Plaintiff, v. Lake County, a municipal corporation; Lake County Sheriff's Department; Gary S. Borders, in his official capacity as Sheriff of Lake County; Deputy Nick Jones, in his individual capacity; Deputy Robert Sellers, in his individual capacity; Deputy Pablo Rivera, in his individual capacity; Deputy Shawn Lukens, in his individual capacity; Corporal Nate Pickens, in his individual capacity; John Doe Officers 1-10; and the Mascotte Police Department, Defendants.
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ORDER
THIS CAUSE is before the Court on Plaintiff's Response to Defendants Jones, Sellers, Rivera, and Lukens' Motion to Dismiss (Doc. 53), filed May 12, 2017; Plaintiff's Response to Defendant Sheriff of Lake County, Florida's Partial Motion to Dismiss (Doc. 54), filed May 12, 2017; Plaintiff's Response to Defendant Nate Pickens's Motion to Dismiss (Doc. 56), filed May 15, 2017; and Plaintiff's Response to Defendant Mascotte Police Department's Motion to Dismiss (Doc. 59), filed May 23, 2017 (collectively, Responses). In the Responses, Plaintiff, in addition to asserting that the motions to dismiss are due to be denied, alternatively requests leave to amend his Amended Complaint (Doc. 13, Amended Complaint) in the event the Court finds that his allegations are inadequate. See Response (Doc. 53) at 15; Response (Doc. 54) at 8-9; Response (Doc. 56), at 8; Response (Doc. 59) at 9-10. Preliminarily, the Court notes that a request for affirmative relief, such as a request for leave to amend a pleading, is not properly made when simply included in a response to a motion. See FED. R. CIV. P. 7(b); see also Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009) ("Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.") (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999)).
Moreover, even if it were proper to include this request in the Responses, the request is otherwise due to be denied for failure to comply with Local Rule 3.01(g), United States District Court, Middle District of Florida (Local Rule(s)). Local Rule 3.01(g) requires certification that the moving party has conferred with opposing counsel in a good faith effort to resolve the issue raised by the motion and advising the Court whether opposing counsel agrees to the relief requested. See Local Rule 3.01(g). In addition, the request in the Responses also fails to satisfy the requirement that "[a] motion for leave to amend should either set forth the substance of the proposed amendment or attach a copy of the proposed amendment." Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also McGinley v. Fla. Dep't of Highway Safety and Motor Vehicles, 438 F. App'x 754, 757 (11th Cir. 2011) (affirming denial of leave to amend where plaintiff did not set forth the substance of the proposed amendment); United States ex. rel. Atkins v. McInteer, 470 F. 3d 1350, 1361-62 (11th Cir. 2006) (same). Thus, the Court will not entertain Plaintiff's request for relief included in the Responses. Plaintiff is advised that, if he wishes to pursue such relief, he is required to file an appropriate motion, in accordance with the Federal Rules of Civil Procedure and the Local Rules of this Court.
Accordingly, it is
ORDERED:
To the extent that he requests affirmative relief from the Court, Plaintiff's Response to Defendants Jones, Sellers, Rivera, and Lukens' Motion to Dismiss (Doc. 53); Plaintiff's Response to Defendant Sheriff of Lake County, Florida's Partial Motion to Dismiss (Doc. 54); Plaintiff's Response to Defendant Nate Pickens's Motion to Dismiss (Doc. 56); and Plaintiff's Response to Defendant Mascotte Police Department's Motion to Dismiss (Doc. 59) are DENIED without prejudice.
DONE AND ORDERED in Jacksonville, Florida, this 19th day of October, 2017.
/s/_________
MARCIA MORALES HOWARD
United States District Judge lc26
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Pro Se Parties