Marowitz v. Williams et al

Filing 14

ORDER Granting 8 Motion to Amend the Complaint, signed by District Judge Dale A. Drozd on 8/23/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW MAROWITZ,

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No. 1:16-cv-01892-DAD-BAM

Plaintiff,
ORDER GRANTING PLAINTIFF’S MOTION
TO AMEND COMPLAINT

v.
SARAH WILLIAMS, et al.,

(Doc. No. 8)
Defendants.

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On August 2, 2018, plaintiff Andrew Marowitz, proceeding in this action pro se and

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having paid the required filing fee, filed a “status update and motion to amend the complaint.”

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(Doc. No. 8.) Therein, plaintiff explains that he previously mailed a letter to the court on July 6,

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2018, seeking to amend his complaint to add as defendants the State of California and California

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Attorney General Xavier Becerra. (Id. at 1.) However, on August 1, 2018, plaintiff contacted the

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Clerk of the Court and was informed that his letter had not been received. (Id.) Plaintiff has

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therefore filed the present motion seeking leave to file a second amended complaint to amend his

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causes of action and the named defendants. (Id.) Plaintiff has separately filed a proposed second

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amended complaint. (Doc. No. 9.)

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The procedural history of this case is somewhat unusual. Service on the defendants has

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not yet been effected. Plaintiff filed his original complaint on December 20, 2016. The docket

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reflects that plaintiff’s complaint was initially set to be screened by the assigned magistrate judge.
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(See Doc. No. 4 at 2.) The magistrate judge granted plaintiff leave to file a first amended

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complaint, which plaintiff did on December 14, 2017. (Doc. Nos. 4, 5.) However, screening of

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plaintiff’s first amended complaint was never conducted, apparently pursuant to a change in this

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court’s screening practices. The Clerk of the Court therefore issued summons on May 9, 2018.

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(Doc. No. 6.) Plaintiff represents that he has not yet served the defendants with the summons and

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first amended complaint because he now seeks to file a second amended complaint. (Doc. No. 8

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at 1.)

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A plaintiff may amend the complaint once as a matter of course within 21 days after

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service. Fed. R. Civ. P. 15(a)(1)(A). If the complaint requires a responsive pleading, a plaintiff

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may amend the complaint 21 days after service of a responsive pleading, or 21 days after service

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of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B). In all

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other circumstances, a plaintiff must obtain the defendant’s consent or leave of the court to amend

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the complaint. Fed. R. Civ. P. 15(a)(2). Because the defendants have not yet been served in this

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action and have therefore not served any responsive pleadings, the court will grant plaintiff’s

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motion to file a second amended complaint.1

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Accordingly:

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1. Plaintiffs’ motion for leave to file an amended complaint (Doc. No. 8) is granted;

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2. The Clerk of the Court is directed to file the proposed second amended complaint

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(Doc. No. 9) on the docket captioned as the second amended complaint, which is

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deemed filed as of the date of this order;

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3. The Clerk of the Court is further directed to issue an amended summons against

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the defendants named in the second amended complaint.
IT IS SO ORDERED.

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Dated:

August 23, 2018
UNITED STATES DISTRICT JUDGE

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The court will do so only because plaintiff is entitled to amend as a matter of right.
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