Payan et al v. Phoenix, City of et al

Filing 23

ORDER that the motion to amend Doc. # 11 is granted; Plaintiffs shall file an amended complaint by December 22, 2009 or this case will be dismissed. Defendant shall answer or otherwise respond to the amended complaint by January 13, 2010. FURTHER ORDERED that the motion to dismiss Doc. # 9 is denied as moot. Signed by Judge James A Teilborg on 12/11/09.(KMG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Martha E. Payan; Xavier Payan, Plaintiffs, vs. City of Phoenix; et al., Defendants.

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No. CV 09-1917-PHX-JAT ORDER

On November 2, 2009, Defendant City of Phoenix moved to dismiss. On November 13, 2009, Plaintiffs moved to amend. As the City notes in its response to the motion to amend, the City filing a motion to dismiss did not cut off Plaintiffs' ability to amend the complaint once as a matter of right under Federal Rule of Civil Procedure 15(a). See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). However, as the City notes, Plaintiffs failed to include the proposed amended complaint as is required by the local rules. Because Plaintiffs may amend once as a matter of right, the Court will grant leave to amend. The Court will deny the motion to dismiss as moot. If Plaintiffs fail to file an amended complaint, the Court will dismiss this case for failure to prosecute and failure to comply with a Court order. See Fed.R.Civ.Pro. 41(b). Accordingly,

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IT IS ORDERED that the motion to amend (Doc. #11) is granted; Plaintiffs shall file an amended complaint by December 22, 2009 or this case will be dismissed. Defendant shall answer or otherwise respond to the amended complaint by January 13, 2010. IT IS FURTHER ORDERED that the motion to dismiss (Doc. #9) is denied as

DATED this 11th day of December, 2009.

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