Shepard v. Quillen

Filing 48

ORDER DENYING Plaintiff's 45 Motion for a Settlement Conference; ORDER STRIKING 46 Amended Complaint and Plaintiff's 47 Pretrial Statement signed by Magistrate Judge Sandra M. Snyder on 5/23/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LAMONT SHEPARD,

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Plaintiff,

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CASE NO. 1:09-cv-00809-LJO-SKO PC
ORDER DENYING PLAINTIFF’S MOTION FOR
A SETTLEMENT CONFERENCE

v.
(ECF. No. 45)

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T. QUILLEN, et al.,

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Defendants.

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ORDER STRIKING AMENDED COMPLAINT
AND PLAINTIFF’S PRETRIAL STATEMENT
/ (ECF Nos. 46, 47)

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I.

Procedural History

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Plaintiff Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. At this juncture, this action is

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proceeding on Plaintiff’s first amended complaint, filed September 16, 2010, against Defendant T.

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Quillen for excessive force in violation of the Eighth Amendment and J. Wise for retaliation in

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violation of the First Amendment. On April 21, 2011, Plaintiff filed a motion for a settlement

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conference. (ECF No. 45.) On May 18, 2011, an amended complaint was lodged and on May 20,

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2011, Plaintiff filed a pretrial statement. (ECF Nos. 46, 47.)

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II.

Motion for Settlement Conference

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The Federal Rules of Civil Procedure authorize settlement discussions at any pretrial

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conference. Fed.R.Civ.P. 16(c)(9). While federal courts have the authority to require the parties to

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engage in settlement conferences, they have no authority to coerce settlements. Goss Graphic

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Systems, Inc. v. DEV Industries, Inc., 267 F.3d 624, 627 (7th Cir. 2001.) Defendants have not
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indicated to the Court that they are willing to participate in a settlement conference. No settlement

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conference will be scheduled until such time as both parties agree to participate in one. Discovery

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in this action opened on March 31, 2011, and Defendant Wise has not yet been served. At this stage

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of the action, when discovery has just begun and all defendants have not been served, a request for

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a settlement conference is premature. Plaintiff is advised that this order does not preclude the parties

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from discussing settlement.

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III.

Amended Complaint

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,

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a party may amend only by leave of the court or by written consent of the adverse party, and leave

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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal and

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leave to amend ‘shall be freely given when justice so requires.’” Amerisource Bergen Corp. v.

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Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However,

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courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2)

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is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. The factor

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of “‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.’” Owens v.

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Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade,

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198 F.3d 752, 757-58 (9th Cir. 1999)).

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Plaintiff has previously filed an amended complaint and an answer has been filed. Plaintiff

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did not file a motion to amend, nor has the Court granted leave to amended. Therefore the amended

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complaint shall be stricken from the record.

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IV.

Pretrial Statement

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Plaintiff filed a pretrial statement. Discovery in this action has just begun and all parties are

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yet to be served. Once discovery is closed and dispositive motions have been decided the Court will

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issue a scheduling order directing the parties to file pretrial statements and other trial documents.

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Plaintiff’s pretrial statement is premature and will be stricken from the record.

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V.

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Order
Accordingly, it is HEREBY ORDERED that:
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Defendants motion for a settlement conference, filed April 21, 2011, is DENIED as
premature;

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Plaintiff’s amended complaint, lodged May 18, 2011, is STRICKEN from the record;
and

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3.

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IT IS SO ORDERED.

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Dated:
cm411

Plaintiff’s pretrial statement, filed May 20, 2011, is STRICKEN from the record.

May 23, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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