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)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
LAMONT SHEPARD,
10
Plaintiff,
11
CASE NO. 1:09-cv-00809-LJO-SKO PC
ORDER DENYING PLAINTIFF’S MOTION FOR
A SETTLEMENT CONFERENCE
v.
(ECF. No. 45)
12
T. QUILLEN, et al.,
13
Defendants.
14
ORDER STRIKING AMENDED COMPLAINT
AND PLAINTIFF’S PRETRIAL STATEMENT
/ (ECF Nos. 46, 47)
15
16
I.
Procedural History
17
Plaintiff Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma
18
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. At this juncture, this action is
19
proceeding on Plaintiff’s first amended complaint, filed September 16, 2010, against Defendant T.
20
Quillen for excessive force in violation of the Eighth Amendment and J. Wise for retaliation in
21
violation of the First Amendment. On April 21, 2011, Plaintiff filed a motion for a settlement
22
conference. (ECF No. 45.) On May 18, 2011, an amended complaint was lodged and on May 20,
23
2011, Plaintiff filed a pretrial statement. (ECF Nos. 46, 47.)
24
II.
Motion for Settlement Conference
25
The Federal Rules of Civil Procedure authorize settlement discussions at any pretrial
26
conference. Fed.R.Civ.P. 16(c)(9). While federal courts have the authority to require the parties to
27
engage in settlement conferences, they have no authority to coerce settlements. Goss Graphic
28
Systems, Inc. v. DEV Industries, Inc., 267 F.3d 624, 627 (7th Cir. 2001.) Defendants have not
1
1
indicated to the Court that they are willing to participate in a settlement conference. No settlement
2
conference will be scheduled until such time as both parties agree to participate in one. Discovery
3
in this action opened on March 31, 2011, and Defendant Wise has not yet been served. At this stage
4
of the action, when discovery has just begun and all defendants have not been served, a request for
5
a settlement conference is premature. Plaintiff is advised that this order does not preclude the parties
6
from discussing settlement.
7
III.
Amended Complaint
8
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
9
pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,
10
a party may amend only by leave of the court or by written consent of the adverse party, and leave
11
shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal and
12
leave to amend ‘shall be freely given when justice so requires.’” Amerisource Bergen Corp. v.
13
Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However,
14
courts “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2)
15
is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile.” Id. The factor
16
of “‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to amend.’” Owens v.
17
Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade,
18
198 F.3d 752, 757-58 (9th Cir. 1999)).
19
Plaintiff has previously filed an amended complaint and an answer has been filed. Plaintiff
20
did not file a motion to amend, nor has the Court granted leave to amended. Therefore the amended
21
complaint shall be stricken from the record.
22
IV.
Pretrial Statement
23
Plaintiff filed a pretrial statement. Discovery in this action has just begun and all parties are
24
yet to be served. Once discovery is closed and dispositive motions have been decided the Court will
25
issue a scheduling order directing the parties to file pretrial statements and other trial documents.
26
Plaintiff’s pretrial statement is premature and will be stricken from the record.
27
V.
28
Order
Accordingly, it is HEREBY ORDERED that:
2
1
1.
2
Defendants motion for a settlement conference, filed April 21, 2011, is DENIED as
premature;
3
2.
4
Plaintiff’s amended complaint, lodged May 18, 2011, is STRICKEN from the record;
and
5
3.
6
IT IS SO ORDERED.
7
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
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?