James Ignatius Diamond v. United States et al

Filing 58

MINUTES (IN CHAMBERS): Denying as Moot Document 41 , the Federal Defendants' Motion to Dismiss the First Amended Complaint ("FAC"); Terminating the Federal Defendants and State Defendants as Parties due to Their Absence from the Seco nd Amended Complaint ("SAC"); Reinstating as Defendants the County of Riverside Sheriff's Department, Deputy Sheriff John Doe, and Deputy Sheriff Jane Doe; Granting Plaintiff Leave to File a 3d Amended Complaint No Later Than July 31, 2015; Vacating the July 27, 2015 Hearing Which the Riverside County Sheriffs Dep't Previously Noticed on Its Motion to Dismiss the SAC by Judge Valerie Baker Fairbank. (See attached document for details.) (lom)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No.:

ED CV 14-01922-VBF

Title:

James Ignatius Diamond, Plaintiff v. County of Riverside Sheriff’s Department

Dated:

June 29, 2015

(Obligee), Trustee John Doe Deputy Sheriff, Trustee Jane Doe Deputy Sheriff, John Doe
Towing Company, and John Doe-Owner (of Trucking Co), and Does 1-50 Trustees,
Defendants
PRESENT:

HONORABLE VALERIE BAKER FAIRBANK, SENIOR U.S. DISTRICT JUDGE
N/A
Courtroom Deputy

N/A
Court Reporter

ATTORNEYS PRESENT FOR APPELLANT

ATTORNEYS PRESENT FOR APPELLEES

N/A
PROCEEDINGS (IN CHAMBERS):

N/A
ORDER

Denying as Moot Document 41, the Federal
Defendants’ Motion to Dismiss the First
Amended Complaint (“FAC”);
Terminating the Federal Defendants and State
Defendants as Parties due to Their Absence
from the Second Amended Complaint (“SAC”);
Reinstating as Defendants the County of
Riverside Sheriff’s Department, Deputy Sheriff
John Doe, and Deputy Sheriff Jane Doe;
Granting Plaintiff Leave to File a 3d Amended
Complaint No Later Than July 31, 2015;
Vacating the July 27, 2015 Hearing Which the
Riverside County Sheriff’s Dep’t Previously
Noticed on Its Motion to Dismiss the SAC

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This is a non-prisoner civil-rights action pursuant to 42 U.S.C. §1983. Before the issuance of today’s
order, the defendants listed on the docket sheet may be separated for convenience into three groups of specifically
named defendants, each of which is represented by common counsel: nine Federal Defendants, seven State
Defendants, and two County Defendants. Plaintiff recently filed a second amended complaint (“SAC”). For
reasons that follow, the Court will deny as moot the Federal Defendants’ motion to dismiss the First Amended
Complaint (“FAC”) and terminate both the Federal Defendants and the State Defendants as parties due to their
absence from the SAC. Finally, the Court will grant plaintiff leave to file a Third Amended Complaint which
asserts all claims he wishes to assert against the Federal, State, or County Defendants, or any other parties.

Plaintiffs’ Filing of the SAC Renders Moot the Federal Defendants’ Motion to Dismiss the FAC
Plaintiff filed the original complaint in September 2014, see CM/ECF Document (“Doc”) 1, and the FAC
(Doc 7) in November 2014. The nine federal defendants – the United States, the United States Department of
Justice, Eric Holder Junior, Andrew Birotte Junior, the Federal Bureau of Investigation, FBI Director James
Comey, Justin Kempf, John Koskinen, and the Internal Revenue Service – jointly filed a motion to dismiss the
FAC (Doc 41) on April 23, 2015; plaintiff timely filed an opposition brief on June 3, 2015 (Doc 46); and the
federal defendants filed a reply brief on June 18, 2015 (Doc 53).
On June 17, 2015, however, plaintiff filed a Second Amended Complaint (“SAC”) (Doc 54) as permitted
by this Court’s May 14, 2015 Order (Doc 45). When the SAC was filed, it superseded the FAC. See Pac. Bell
Tel. Co. v. Linkline Comms., Inc., 555 U.S. 438, 456 n.4, 129 S. Ct. 1109, 1123 n.4 (2009) (“Normally, an
amended complaint supersedes the original complaint.”) (citation omitted). As the Ninth Circuit has said, “[a]s
a general rule, when a plaintiff files an amended complaint, the amended complaint supercedes [sic] the original,
the latter being treated thereafter as non-existent.” Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014) (quoting
Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (internal quotation marks and citations omitted)).
Accordingly, the FAC no longer exists, and the Federal Defendants’ motion to dismiss the nownonexistent FAC is moot. See Petrus v. NY Life Ins. Co., 2015 WL 3796221, *1 (S.D. Cal. June 18, 2015) (“As
the FAC superseded the initial Complaint, those motions to dismiss the initial Complaint are TERMINATED
as MOOT.”); Harris v. United States, 2012 WL 7845600 (C.D. Cal. Dec. 21, 2012) (Valerie Baker Fairbank, J.);

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accord Glass v. Kellogg Bakery, Confectionery, Tobacco Workers & Grain Millers Pension Plan, 2009 WL
2567191, *1 (W.D. Mich. Aug. 17, 2009) (Paul Lewis Maloney, C.J.) (“Glass amended the complaint . . . , and
this Court denied as moot the motion to dismiss the original complaint.”) (citation omitted); Cedar View, Ltd.
v. Colpetzer, 2006 WL 456482, *1 n.1 (N.D. Ohio Feb. 24, 2006) (Ann Aldrich, J.) (“Two other motions pending
before the court . . . are denied as moot, as they refer to a version of the complaint that has since been replaced.”).

The SAC Fails to Name the Federal and State Defendants as Defendants, so They Are Terminated
Moreover, in the SAC, the plaintiff no longer names any of the Federal Defendants or any of the
State Defendants as defendants. Accordingly, the Court will direct the Clerk’s Office to terminate the nine
Federal Defendants and the seven State Defendants as parties defendant in this matter. See, e.g., Asberry
v. Beard, 2014 WL 3943549, *3 n.3 (S.D. Cal. Aug. 12, 2014) (“While Plaintiff’s original Complaint included
. . . claims against Defendant Denbella and an additional unnamed John Doe doctor, his Second Amended
Complaint does not name those parties; therefore, any purported claim against them has been waived.”) (citing
King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“All causes of action alleged in an original complaint which
are not alleged in an amended complaint are waived.”)).

An Amended Complaint May NOT Incorporate by Reference Anything from a Prior Complaint
Finally, the Court notes that plaintiff is proceeding pro se. The Court would further note that its May 14,
2015 Order (Doc 45) granted the County Defendants’ motion to dismiss the FAC as to them pursuant to Fed. R.
Civ. P. 12(b)(1) and (6) for failure to satisfy the notice-pleading standard and failure to state a claim on which
relief could be granted. That same May 14, 2015 Order granted plaintiff leave to amend his complaint if he
wished to rectify the deficiencies in his claims against the County Defendants. The Order did not prohibit
plaintiff from asserting the same claims, or additional claims, against the other parties he had named as
defendants in the FAC (including the Federal and State Defendants).
The Court surmises that as a layman, plaintiff may have misunderstood the scope of the leave to amend
being granted; that is, plaintiff may have thought that his second amended complaint should merely plead an
improved version of claims against the County Defendants and did not need to include any claims against the

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Federal and State Defendants or other parties. The Court bases this surmise on plaintiff’s statement, at the outset
of the SAC, that “This Second-Amended-Complaint incorporates all of the allegations, exhibits, and SchedulesC, D and E of the First-Amended-Complaint that have been submitted in this case.” SAC (Doc 54) at 2. The
Court will advise plaintiff that an amended pleading must be complete in and of itself, and any amended
complaint which he files must not rely on or purport to incorporate any material from earlier versions of the
complaint. See C.D. Cal. Local Civil Rule 15-2, Complete Document (“Every amended pleading filed as a matter
of right or allowed by order of the Court shall be complete including exhibits. The amended pleading shall not
refer to the prior, superseded pleading.”). As Judge Corley of our circuit recently admonished a pro se civilrights plaintiff under similar circumstances:

Because an amended complaint completely replaces the original complaint, . . . , plaintiff may not
incorporate material from the original by reference. That is, he must include the claims against
the other defendants in any amended complaint, and if he does not, those claims will . . . no
longer be part of this case.

Parsons v. Alameda Cty. Sheriff’s Dep’t, 2015 WL 3866098, *2 (N.D. Cal. June 22, 2015) (Jacqueline Scott
Corley, M.J.) (internal citation omitted); see also Banks v. Doe, 2013 WL 812623, *4 (C.D. Cal. Mar. 5, 2013)
(Jay Gandhi, M.J.) (“The First Amended Complaint may not incorporate any part of the Complaint by
reference.”). In other words, “‘[i]n an amended complaint, as in an original complaint, each claim and the
involvement of each defendant must be sufficiently alleged.’” Aguilar v. County of Riverside, 2014 WL 1795204,
*7 n.2 (C.D. Cal. Apr. 25, 2014) (Fairbank, J.) (quoting Willis v. Beard, 1416342, *4 (E.D. Cal. Apr. 14, 2014)).

ORDER
The Federal Defendants’ April 23, 2015 motion to dismiss the FAC [Doc #41] is DENIED as moot.

The Clerk of Court SHALL TERMINATE the following nine parties, referred to as “the Federal
Defendants”, as parties defendant herein:

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–

“United States (Trust Obligor)”

–

“Department of Justice (Obligee) doing business as Attorney General”

–

“Eric Holder, Jr. (Trustee 1) doing business as Attorney General”

–

“Andre Birotte, Jr. (Trustee 2), United States Attorney for the Central District of California”

–

“Federal Bureau of Investigation (Obligee)”

–

“James B. Comey (Trustee 3)”

–

“Justin Kempf (Trustee 4) doing business as Special Agent”

–

“Internal Revenue Service (Obligor)”

–

“John Koskinen (Trustee 5) doing business as Commissioner IRS”

The Clerk of Court SHALL TERMINATE the following seven parties, referred to as “the State
Defendants”, as parties defendant herein:
–

“State of California (Obligor)”

–

“Edmund G. Brown, Jr. (Trustee 6) also known as Jerry Brown”

–

“California Franchise Tax Board (Obligee)”

–

“John Chiang (Trustee 7)”

–

“California Department of Motor Vehicles (Obligee)”

–

“George Valverde (Trustee 8)”

–

“Kamala D. Harris (Trustee 9)”

The Second Amended Complaint is not affected by this Order and it remains pending against the parties
named in the caption of the Second Amended Complaint.
The County of Riverside Sheriff’s Department’s June 26, 2015 motion to dismiss the second amended
complaint is not affected by this order and it remains pending.

The Clerk of Court SHALL REINSTATE the following three parties, referred to as “the County
Defendants”, as parties defendant herein:

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–

County of Riverside Sheriff’s Department

–

“Trustee John Doe Deputy Sheriff”

–

“Trustee Jane Doe Deputy Sheriff”

The Clerk’s Office SHALL NOT reinstate Stanley Sniff as a party defendant.1

No later than Friday, July 31, 2015, plaintiff MAY FILE a Third Amended Complaint. Any such
Third Amended Complaint must assert all claims against any and all persons and entities against whom he wishes
to seek relief herein. See East v. San Bernardino Cty. Sheriff’s Dep’t, 2010 WL 2805837, *3 (C.D. Cal. June
7, 2010) (George Wu, J.) (“The Third Amended Complaint shall be complete in itself and shall not refer in any
manner to any prior Complaint.”).

Plaintiff is warned that any claim, allegation, party, or exhibit not

included in or attached to any Third Amended Complaint will not be part of this case. See Coston-Moore
v. Medina, 2010 WL 5418240, *1 (E.D. Cal. Dec. 23, 2010) (Raner Collins, J.) (“All grounds alleged in the
original Complaint that are not alleged in the amended complaint will be waived.”) (citing King, 814 F.2d at 567,
and Hal Roach Studios v. Richard Feinder & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)).

Barring truly extraordinary circumstances, plaintiff should not expect the Court to grant him leave
to amend the complaint again after that. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)
(“The district court’s discretion to deny leave to amend is particularly broad where plaintiff has previously
amended the complaint.”).2
1

Stanley Sniff, Riverside County Sheriff, was named as a defendant in the First Amended Complaint but
was dismissed by a prior Order of this Court. Plaintiff states as follows in the Second Amended Complaint (Doc
54) at 2: “the Defendant-Trustee Stanley Sniff Sheriff has been eliminated as Defendant on [sic] this SecondAmended-Complaint[.]”
2

See, e.g., Sandoval v. County of Sonoma, 2015 WL 1926269, *1 (N.D. Cal. Apr. 27, 2015) (Thelton
Henderson, Sr. J.) (noting that after granting plaintiffs leave to file a third amended complaint, the Court had
“advised Plaintiffs that ‘no further amendment shall be granted absent extraordinary circumstances’”); East v.
San Bernardino Cty. Sheriff’s Dep’t, 2010 WL 2805837, *3 (C.D. Cal. June 7, 2010) (George Wu, J.) (“Absent
extraordinary circumstances, this leave to amend will be Plaintiff’s last opportunity to file an amended complaint

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If plaintiff chooses not to file a Third Amended Complaint, he must respond to the County of
Riverside Sheriff’s Department’s June 26, 2015 motion to dismiss the Second Amended Complaint (Doc
57) or risk the granting of that motion as unopposed.

The July 27, 2015 hearing which the County of Riverside Sheriff’s Department noticed on its motion
to dismiss the SAC is VACATED.

This is not a final and immediately appealable order, because it does not dispose of all claims, issues, and
defenses as to all parties.
IT IS SO ORDERED.

complying with this Court’s orders.”); cf. Chandler v. Walker, 2011 WL 5290151, *2 (E.D. Cal. Nov. 2, 1991)
(Carolyn Delaney, M.J.) (“[A]bsent extraordinary circumstances, plaintiff will not be granted leave to amend
again and failure to file a third amended complaint in accordance with this order will result in a recommendation
that this action be dismissed.”).

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