Zepeda v. Tate et al

Filing 21

ORDER that Plaintiff's 18 Second Amended Complaint is STRICKEN as Improperly Filed; ORDER that Plaintiff must File a RESPONSE to Defendants' 16 Motion to Dismiss no later than November 26, 2010; ORDER that Defendant may File a REPLY no later than December 6, 2010 signed by Senior Judge Stephen M. McNamee on 11/9/2010. (Sant Agata, S)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Harold Tate, et al., Defendants. Jaime L. Zepeda, Plaintiff, ) ) ) ) ) ) ) ) ) ) No. CV 1:07-0982-SMM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Before the Court is Plaintiff's Second Amended Complaint (Doc. 18). The pleading will be stricken as improperly filed. Defendant O'Brien filed a Motion to Dismiss (Doc. 16) on October 13, 2010 pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to exhaust prison administrative remedies as required by 42 U.S.C. 1997e(a). Plaintiff subsequently filed a Second Amended Complaint (Doc. 18) on October 15, 2010. Federal Rule of Civil Procedure 15 entitles a party to amend its pleading "once as a matter of course" within 21 days after service, or "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(A)-(B). Further amendment is permissible "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed his First Amended Complaint (Doc. 10) on August 31, 2009. Plaintiff then filed a Second Amended Complaint (Doc. 18) without leave from the Court or Defendant's permission. Plaintiff violated Rule 15 by failing to secure the Court's leave or Defendant's permission before filing his Second Amended Complaint. IT IS ORDERED that Plaintiff's Second Amended Complaint (Doc. 18) is STRICKEN as improperly filed. Plaintiff must comply with Federal Rule of Civil Procedure 15(a) to amend his complaint. IT IS FURTHER ORDERED that Plaintiff must file a response to Defendant's Motion to Dismiss, together with copies of grievances, sworn declarations or other admissible evidence, no later than November 26, 2010. The response and its supporting memorandum shall not exceed seventeen (17) pages, exclusive of attachments. The previous November 12, 2010 deadline for Plaintiff's response set by the Court in its October 15, 2010 order (Doc. 17) is hereby vacated. IT IS FURTHER ORDERED that Defendant may file a reply no later than December 6, 2010. The reply and its supporting memorandum shall not exceed eleven (11) pages, exclusive of attachments. The previous November 22, 2010 deadline for Defendant's reply set by the Court in its October 15, 2010 order (Doc. 17) is hereby vacated. DATED this 9th day of November, 2010. -2-

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