J ulie 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
julie@cblawoffices.org

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 700
Washington DC, 20009
TEL: (202) 588-5206
FAX: (202) 588-5049
kmeyer@meyerglitz.com
msinnott@meyerglitz.com
beubanks@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 more wild 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 J une 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 J une 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 J une 19. See Fed. 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 J une 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. J an. 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. J une 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 700
Washington, D.C. 20009
(202) 588-5206



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_/s/___________________________
J ulie 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 Terrell
Date: J une 9, 2014
Case 3:13-cv-00712-MMD-WGC Document 41 Filed 06/09/14 Page 5 of 5