Archer et al v. City of Taft, Ca. Inc. et al

Filing 31

ORDER STRIKING 13 SECOND AMENDED COMPLAINT, signed by Magistrate Judge Jennifer L. Thurston on 4/17/2014. Second Amended Complaint 13 is stricken. Answer filed by Jill Gipson 17 is deemed responsive to the First Amended Complaint. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARNELL ARCHER et al.,
Plaintiffs,

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v.

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CITY OF TAFT, et al.
Defendants.

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I.

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Case No.: 1:12-cv-00261 LJO JLT
ORDER STRIKING SECOND AMENDED
COMPLAINT
(Doc.13)

Background
Plaintiffs filed their original complaint on February 23, 2012. (Doc. 1) The Court screened the

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complaint and dismissed it with leave to amend. (Doc. 3) On May 15, 2012, Plaintiffs filed their first

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amended complaint. (Doc. 4) Again, the Court screened this complaint and found cognizable claims

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but determined that claims had not been stated against some defendants, including the City of Taft, and

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finding that several causes of action were not viable. (Doc. 5) The Court ordered Plaintiffs to notify it

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if they wished to proceed only on these claims deemed cognizable and only against the remaining

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defendants or to file a second amended complaint. Id.

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On August 11, 2012, Plaintiffs notified the Court that they wished to proceed only on the

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cognizable claims and only as to the remaining defendants. (Doc. 6) Plaintiffs wrote, “Plaintiffs in this

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case have decided to follow the directive in [the August 1, 2012] order and are notifying this court of

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our willingness to proceed only on those claims deemed cognizable by this court and against
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Defendants: Jill Gipson, Joseph Burke and J.E. Burke Construction.” Id. On September 12, 2012, the

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Court adopted the findings and recommendations and dismissed all claim except for those brought

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under the Fourth and Fourteenth Amendments and dismissing all defendants except Jill Gipson, Joseph

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Burke and J.E. Burke Construction. (Doc. 12) In addition, the Court issued summonses and authorized

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service of the first amended complaint to these defendants. (Docs. 7-10) Nevertheless, the next day,

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Plaintiffs filed a second amended complaint which, seemingly, added the City of Taft as a defendant to

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the action. (Doc. 13 at 5-6, 8)

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II.

Plaintiffs are not entitled to file an amendment as of right

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As noted above, the Court screened Plaintiffs complaints twice and allowed them to file

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amended complaints if they chose or to proceed on the claims and as to the defendants deemed viable.

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(Docs. 3, 7) Despite electing to proceed on the first amended complaint (Doc. 6) and the despite the

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Court taking action to have the first amended complaint served, Plaintiffs then filed a second amended

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complaint without first seeking leave of the Court. Thus, the Court orders the second amended

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complaint (Doc. 13) STRICKEN and deems the answer filed by Jill Gipson to be to the first amended

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complaint.
ORDER

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Based upon the foregoing, the Court ORDERS:

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1.

The second amended complaint (Doc. 13) is STRICKEN;

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2.

The answer filed by Jill Gipson (Doc. 17) is deemed responsive to the first amended

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complaint.

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IT IS SO ORDERED.
Dated:

April 17, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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