-GWF Jones v. Neven et al, No. 2:2007cv01088 - Document 198 (D. Nev. 2011)

Court Description: ORDER that findings and recommendations of Magistrate Judge George Foley, Jr 181 regarding the plaintiffs motion to modify scheduling order 179 are AFFIRMED in their entirety. Plaintiffs motion to modify scheduling order 179 is DENIED. Signed by Judge James C. Mahan on 7/22/11. (Copies have been distributed pursuant to the NEF - ECS)

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-GWF Jones v. Neven et al Doc. 198 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 CHRISTOPHER A. JONES, 9 10 11 Plaintiff, v. 2:07-CV-1088 JCM (GWF) Date: Time: N/A N/A DWIGHT NEVEN, et al., 12 Defendant. 13 14 ORDER 15 Presently before the court are the findings and recommendations of Magistrate Judge George 16 Foley, Jr (doc. #181) regarding the plaintiff’s motion to modify scheduling order (doc. #179). 17 Plaintiff filed an objection (doc. #184) and defendants filed an opposition to the objection (doc. 18 #193). 19 In the magistrate judge’s findings and recommendations (doc. #181), he recommends that 20 the court deny plaintiff’s motion to modify scheduling order (doc. #179), because “the proposed 21 amendment would be futile and subject to dismissal on the same grounds identified by the [c]ourt 22 in its prior order of dismissal.” Specifically, the magistrate judge held that plaintiff is attempting to 23 revive an already dismissed claim for medical negligence by the requested amendment, and that such 24 amendment would be futile, as plaintiff has failed to provide the court with the necessary affidavit1. 25 26 1 27 For a claim of medical negligence, plaintiff must submit an affidavit by a qualified medical expert. NRS § 41A.071. 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 2 In the plaintiff’s objection (doc. #184), he contends that the court misunderstood his intent, 3 and that he is seeking to “first obtain a modification of the scheduling order...,” and then “later 4 submit a motion to amend and the amended complaint with the accompanying affidavit per LR 15-1 5 and NRS 41A.071.” The court agrees with defendants, that plaintiff is merely seeking to find out if 6 the court would allow him to amend before spending the money to obtain an affidavit. This is 7 improper. See NRS § 41A.071. 8 In the defendants’ opposition (doc. #193), they assert that this court should affirm the 9 recommendation, because (1) the plaintiff has failed to submit the required affidavit, (2) plaintiff is 10 required to do so prior to being granted leave to amend, (3) the statute of limitations has run on the 11 medical negligence claim, and (4) the complaint was filed in 2007, and the defendants would be 12 unduly prejudiced if the court were to allow plaintiff to revive the claim now. 13 14 Upon review of the magistrate judge’s recommendation (doc. #181) and the objection and opposition thereto, 15 IT IS HEREBY ORDERED ADJUDGED AND DECREED that findings and 16 recommendations of Magistrate Judge George Foley, Jr (doc. #181) regarding the plaintiff’s motion 17 to modify scheduling order (doc. #179) be, and the same hereby are, AFFIRMED in their entirety. 18 IT IS THEREFORE ORDERED that plaintiff’s motion to modify scheduling order (doc. 19 #179) be, and the same hereby is, DENIED. 20 DATED this 22nd day of July, 2011. 21 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 James C. Mahan U.S. District Judge -2-

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