Naco Awhpc Motion to Deny Motion to Stay

8/12/2019 Naco Awhpc Motion to Deny Motion to Stay

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Julie Cavanaugh-Bill (Nevada Bar No. 11533)

Cavanaugh-Bill Law Offices, LLC

Henderson Bank Building

401 Railroad Street, Suite 307

Elko, Nevada 89801

TEL: (775) 753-4357

FAX: (775) 777-2983

[email protected]

Michelle D. Sinnott (admitted pro hac vice)

Katherine A. Meyer (admitted pro hac vice)

William S. Eubanks II (admitted pro hac vice)

Meyer Glitzenstein & Crystal

1601 Connecticut Ave, NW, Suite 700Washington DC, 20009

TEL: (202) 588-5206

FAX: (202) 588-5049

[email protected]

[email protected]@meyerglitz.com

Attorney for Defendant-Interveners;

American Wild Horse Preservation Campaign,Terri Farley, and Mark Terrell

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

NEVADA ASSOCIATION OF COUNTIES, )

et al, ) Civil No. 3:13-CV-712-MMD-(WGC)

Plaintiffs, ))

vs. )

)

UNITED STATES DEPARTMENT OF THE )INTERIOR; et al., )

)Defendants. )

)

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, TERRI FARLEY, AND

MARK TERRELLS OPPOSITION TO PLAINTIFFS MOTION TO STAY

Case 3:13-cv-00712-MMD-WGC Document 41 Filed 06/09/14 Page 1 of 5


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The Defendant-Interveners, American Wild Horse Preservation Campaign (AWHPC),

Terri Farley, and Mark Terrell (herein collectively referred to as AWHPC) oppose the

Plaintiffs request for a stay of the briefing on AWHPCs pending Motion to Dismiss for the

following reasons.

First, AWHPC sees no reason to stay its pending motion because Plaintiffs intend to

file an amended complaint sometime in the future. Pls. Mtn. at 2. This case was filed on

December 30, 2013, and, other than AWHPC moving to dismiss the case for lack of jurisdiction,

little activity has occurred at least on the public record. AWHPC is concerned that if this case

is stayed while Plaintiffs decide how to respond to AWHPCs Motion to Dismiss, the Plaintiffs

and the government may, as has happened in previous similar litigation, enter into negotiations to

which AWHPC is excluded, resulting in the government acquiescing in Plaintiffs claims to

remove morewild horses from the range in Nevada. See e.g. DE 29, Court Order Granting

Intervention at 9 (noting that AWHPC argue[s] that BLM in the past has shown a propensity to

settle these law suits in ways that do not protect the wild horses) (emphasis added); see also

Rock Springs Grazing Association v. Salazar, No. 2:11-cv-263, DE 79 (D. Wyo. Dec. 17, 2012)

(Interveners, AWHPC and others, objecting because after a motion to dismiss for lack

jurisdiction was filed and fully briefed, the plaintiffs sought to delay the case because of ongoing

settlement discussions with the government that excluded the interveners.). Accordingly,

granting a stay based solely on Plaintiffs representation that it may file an amended complaint

on June 19 would prejudice AWHPCs interest in having this case dismissed without significant

delay.

Second, even though AWHPC opposes the Motion to Stay, it has informed Plaintiffs that



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it has no objection to Plaintiffs having an extension of time until June 27, 2014 to respond to its

Motion to Dismiss an extension that would give Plaintiffs almost 30 days to respond to the

motion that was filed on May 29, 2014. If Plaintiffs intend to file an amended complaint without

leave of court they must do so by June 19. SeeFed. R. Civ. Pro. 15(a)(1)(B)(allowing a party to

file an amended pleading 21 days after service of a Rule 12(b) motion). If Plaintiffs do so, all

parties can decide how best to proceed at that time. If, however, Plaintiffs do not file an

amended complaint by June 19, they would have to seek leave to do so under Rule 15(a)(2).

This would provide AWHPC, and all other parties, an opportunity either to consent to the

motion, or to oppose such a request on the grounds that, for example, amending the Complaint

would be futile because the proposed amendments would not cure the subject matter jurisdiction

issues raised by AWHPCs Motion to Dismiss. See Saul v. United States, 928 F.2d 829, 843 (9th

Cir. 1991) (holding that a court can deny leave to amend where the amendment would be

futile.) (emphasis added).

Third, contrary to the assertions made by Plaintiffs, Pls. Mtn. at 3, AWHPCs Motion to

Dismiss will not necessarily become moot when Plaintiffs file an amended complaint. While

it is true that an amended complaint supersedes the original complaint and renders it without

legal effect,Lacey v. Maricopa County,693 F.3d 896, 927 (9th Cir.2012), this does not

automatically render the arguments raised in AWHPCs Motion to Dismiss moot. In fact,

[w]here an amended complaint suffers from the same deficiencies as an original complaint . . .

it is within the courts discretion to consider a motion based on the original complaint as if it

were based on the amended complaint. Shupe v. Cricket Commcns Inc., No. 12-634, 2013 WL

68876 (D. Ariz. Jan. 7, 2013)(emphasis added); see, also e.g.,Montgomery v. Las Vegas



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Metropolitan Police Department, No. 2:11-cv-02079, 2013 WL 3198305 (D. Nev. June 20,

2013) (this Court noting that because the Amended Complaint contains the same deficiencies . .

. the court will treat the Defendants Motions to Dismiss as responses to Plaintiffs Amended

Complaint.);Jordan v. City of Philadelphia,66 F.Supp.2d 638, 641 n. 1 (E.D.Pa.1999)

(explaining that because the amended complaint suffer[s] from the same deficiencies that are

addressed in defendants motion to dismiss, the court will treat the motion to dismiss as

addressing the amended complaint.); Sun Co., Inc. (R & M) v. Badger Design & Constructors,

Inc.,939 F.Supp. 365, 367 (E.D.Pa.1996) ([T]he contentions presented in Defendants initial

Motion to Dismiss are germane to the Amended Complaint because it failed to cure a majority of

the deficiencies initially alleged.).

For all of the above reasons, AWHPC requests that the Court deny the Plaintiffs Motion

to Stay, and at this juncture, simply give Plaintiffs additional time to respond to the pending

Motion to Dismiss.

Respectfully submitted,

__/s/__________________________

Michelle D. Sinnott (admitted pro hac vice)

(Virginia Bar No. 85563)Katherine A. Meyer (admitted pro hac vice)

(D.C. Bar No. 244301)

William S. Eubanks II (admitted pro hac vice)(D.C. Bar No. 987036)

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Ave., N.W. Suite 700Washington, D.C. 20009

(202) 588-5206



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_/s/___________________________

Julie Cavanaugh-Bill

(Nevada Bar No. 11533)

CAVANAUGH-BILL LAW OFFICES, LLC

Henderson Bank Building

401 Railroad Street, Suite 307

Elko, Nevada 89801(775) 753-4357

Counsel for Defendant-Interveners, American Wild

Horse Preservation Campaign, Terri Farley, and

Mark TerrellDate: June 9, 2014


Naco Awhpc Motion to Deny Motion to Stay

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