Phillips v. Secretary of Navy

Filing 20

ORDER Denying as Moot 19 Motion for Leave to File Amended Complaint and 5 Motion to Dismiss signed by District Judge Dale A. Drozd on 04/05/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL PHILLIPS, 12 Plaintiff, 13 14 No. 1:16-cv-01944-DAD-SKO v. SECRETARY OF NAVY, 15 Defendants. ORDER DENYING AS MOOT MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND MOTION TO DISMISS (Doc. Nos. 5, 10, 19) 16 Plaintiff Darryl Phillips is proceeding pro se in this action filed under the Administrative 17 18 Procedures Act on December 30, 2016. (Doc. No. 1.) Defendant filed a motion to dismiss 19 pursuant to Rule 12(b) on March 22, 2017. (Doc. No. 5.) Plaintiff then filed a motion for leave 20 to file an amended complaint on April 4, 2017. (Doc. No. 19.) Plaintiff brought his motion to 21 amend pursuant to Federal Rule of Civil Procedure 15(a)(2), which provides that “a party may 22 amend its pleading only with the opposing party’s written consent or the court’s leave.” 23 However, Rule 15(a)(1)(B) is more applicable in this instance. Under that provision, a party may 24 amend its pleading once as a matter of course, i.e., without court permission, “21 days after 25 service of a motion under Rule 12(b), (e), or (f).” Fed. R. Civ. P. 15(a)(1)(B). Plaintiff lodged 26 his amended complaint and then a supplemental complaint with the court on April 3, 2017, which 27 is less than twenty-one days after defendant’s Rule 12(b) motion was filed. (Doc. Nos. 5, 10, 11.) 28 ///// 1 1 Accordingly, the Clerk of the Court will be directed to file plaintiff’s amended complaint 2 (Doc. No. 10), which is now the operative complaint in this matter and is deemed filed as of the 3 date it was lodged with the court, April 3, 2017. Plaintiff may only amend once as a matter of 4 course and leave of court must be sought to file any other amendments.1 Since plaintiff did not 5 require the court’s permission to amend once as a matter of course, his motion to amend (Doc. 6 No. 19) is denied as unnecessary and moot. Similarly, defendant’s motion to dismiss (Doc. No. 7 5) directed at plaintiff’s original complaint is denied as moot due to the amendment, without 8 prejudice to refiling directed to the now-operative complaint in this action. 9 IT IS SO ORDERED. 10 Dated: April 5, 2017 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff’s supplemental complaint, which appears to be nearly identical to his amended complaint, is therefore a nullity. 2

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