Mena v. Kern High School District et al

Filing 10

ORDER VACATING HEARING on Motion to Stay 8 , signed by Magistrate Judge Jennifer L. Thurston on 8/28/2013. The Initial Scheduling Conference is CONTINUED to 11/6/2013 at 09:30 AM at the United States Courthouse, 510 19th Street (JLT), Bakersfield, before Magistrate Judge Jennifer L. Thurston. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT MENA,
Plaintiff,

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v.

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KERN HIGH SCHOOL DISTRICT, et al.,

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Defendants.

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Case No.: 1:13-cv-00650 AWI JLT
ORDER VACATING HEARING ON MOTION TO
STAY
(Doc. 8)

Before the Court is Plaintiff’s motion to stay the action. (Doc. 8) The basis for this motion is

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that Plaintiff is maintaining an action against the defendants in state court based upon the same factual

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circumstances as this federal court action. Id. at 1-3. However, the state court action does not contain

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the 42 U.S.C. § 1983 cause of action that this federal action contains. Id. Counsel reports he

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discovered that his earlier appraisal of the case related to the § 1983 cause of action was incorrect. Id.

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Initially, he believed Plaintiff could not maintain a § 1983 cause of action to vindicate a First

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Amendment right. Id. Due to the running of the statute of limitations and his inability to file the

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motion to amend the state court action to include this claim within the limitation period, Plaintiff filed

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his second action in this Court. Id.

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Now, Plaintiff reports he intends to file a motion for leave to file a second amended complaint

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in state court to include the § 1983 action; however, he has not yet done so. Thus, the Court does not

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find the motion to stay is ripe and will delay ruling on the matter for 30 days. During this time,
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Plaintiff SHALL file his motion for leave to amend in the state court action. The Court anticipates

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that Plaintiff will make this filing as soon as practicable but not later than September 6, 2013. In

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addition, Plaintiff SHALL file an amendment to his current motion in this Court demonstrating his

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efforts in state court.

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ORDER

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Based upon the foregoing, the Court ORDERS:

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1.

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Plaintiff SHALL file his motion for leave to file a second amended complaint in the

state court action no later than September 6, 2013;
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No later than September 27, 2013, Plaintiff SHALL file an amendment to his motion

explaining the current status of his state-court motion;
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The hearing on the motion to stay (Doc. 8) is VACATED. The Court will determine

whether a hearing is needed after it reviews the amendment to the motion;
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The scheduling conference is CONTINUED to November 6, 2013at 9:30 a.m.

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IT IS SO ORDERED.
Dated:

August 28, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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