Opinion
No. 3:05-CV-0366-L.
May 23, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE REGARDING MOTION TO DISMISS
By Order of Reference filed April 28, 2005, the District Court referred plaintiff's "Motion to Withdraw Action in the Above Case [Number]" to the undersigned Magistrate Judge for proposed findings and recommendations for disposition of the motion.
I. BACKGROUND
On February 23, 2005, the Court received plaintiff's complaint against defendants on a standard form for actions commenced under 42 U.S.C. § 1983. On March 14, 2005, the Court received an amendment/supplement to the complaint filed in this action in which plaintiff claims that defendants were deliberately indifferent to his serious medical needs. On March 18, 2005, the Court ordered the complaint and amendment/supplement to be served upon defendants. On March 29, 2005, the Court received the instant motion to withdraw wherein plaintiff seeks to "withdraw the original complaint without prejudice or in the alternative allow plaintiff to amend the original complaint." On April 28, 2005, the District Court referred that motion to the undersigned Magistrate Judge. On May 6, 2005, the Court received a response to the Order of Reference in which plaintiff clarifies that he does not want to completely withdraw this action, but rather wants to withdraw the action merely to file an amended complaint that "has been sent to the Court."
II. WITHDRAW COMPLAINT
Plaintiff seeks to "withdraw" his original complaint so that he can file an amended complaint. Because no rule of procedure requires a party to withdraw a pleading before amending it and because plaintiff has clarified that he has no intention to voluntarily dismiss this action, the Court should deny the request to withdraw the original complaint.III. AMENDMENT
In the alternative, plaintiff seeks leave to amend his original complaint. Although he claims to have sent the proposed amendment to the Court, the only amendment received by the Court is the one received on March 14, 2005. Because no responsive pleading had been served in this action at that time, Fed.R.Civ.P. 15(a) permitted plaintiff to amend his original complaint without leave of court. The Court has already accepted that amended pleading and ordered it served upon defendants with the original complaint. The Court thus finds that the instant motion to amend does not relate to the March amendment.
To the extent that the instant motion relates to a second proposed amendment that has not yet been received by the Court, the Court thus considers whether it should grant plaintiff leave to file such amendment. Rule 15(a) of the Federal Rules of Civil Procedure directs the federal courts to freely grant leave to amend "when justice so requires." This does not mean that a party is automatically entitled to such leave upon request. When a party moves to amend his complaint, he must do so in a procedurally proper manner by complying with applicable rules of procedure. The local rules of this Court require such party "to include the proposed amended pleading so that the Court can evaluate whether to grant the motion." Infomart (India), Pvt., Ltd. v. Metrowerks Corp., No. 3:04-CV-1299-N, 2005 WL 292433, at *14 (N.D. Tex. Feb. 7, 2005) (citing L.R. 15.1). The Court properly denies leave to amend when the moving party fails to comply with Rule 15.1. Bryant v. Orndorff, No. 5:04-CV-215-C, 2005 WL 139115, at *5 (N.D. Tex. Jan. 21, 2005); Jones v. Dretke, No. 3:03-CV-2629-D, 2004 WL 1698291, at *2 (N.D. Tex. July 28, 2004) (report and recommendation), accepted by unpub. order (N.D. Tex. Aug. 31, 2004). "All parties, even those who proceed without counsel, must abide by the local rules of this Court." Jones, 2004 WL 1698291, at *2.
In this case, plaintiff has not complied with the local rule of this Court that governs motions to amend. He has attached no copy of the proposed amendment as required by L.R. 15.1. Nor has he submitted an original and a second copy of the proposed amendment as required by L.R. 15.1. Such deficiencies are sufficient of themselves to deny plaintiff's request for leave to amend. Without a copy of the proposed amended complaint, the Court is in no position to consider plaintiff's request to amend his complaint. Consequently, the Court should deny the instant motion to the extent plaintiff seeks leave to amend his original complaint.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the Court DENY plaintiff's "Motion to Withdraw Action in the Above Case [Number]" (doc. 8). To obtain leave of Court to file an amended pleading, plaintiff must comply with L.R. 15.1 and show that justice requires the granting of such leave.