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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL PHILLIPS,

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Plaintiff,

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No. 1:16-cv-01944-DAD-SKO

v.
SECRETARY OF NAVY,

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Defendants.

ORDER DENYING AS MOOT MOTION FOR
LEAVE TO FILE AMENDED COMPLAINT
AND MOTION TO DISMISS
(Doc. Nos. 5, 10, 19)

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Plaintiff Darryl Phillips is proceeding pro se in this action filed under the Administrative

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Procedures Act on December 30, 2016. (Doc. No. 1.) Defendant filed a motion to dismiss

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pursuant to Rule 12(b) on March 22, 2017. (Doc. No. 5.) Plaintiff then filed a motion for leave

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to file an amended complaint on April 4, 2017. (Doc. No. 19.) Plaintiff brought his motion to

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amend pursuant to Federal Rule of Civil Procedure 15(a)(2), which provides that “a party may

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amend its pleading only with the opposing party’s written consent or the court’s leave.”

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However, Rule 15(a)(1)(B) is more applicable in this instance. Under that provision, a party may

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amend its pleading once as a matter of course, i.e., without court permission, “21 days after

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service of a motion under Rule 12(b), (e), or (f).” Fed. R. Civ. P. 15(a)(1)(B). Plaintiff lodged

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his amended complaint and then a supplemental complaint with the court on April 3, 2017, which

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is less than twenty-one days after defendant’s Rule 12(b) motion was filed. (Doc. Nos. 5, 10, 11.)

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Accordingly, the Clerk of the Court will be directed to file plaintiff’s amended complaint

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(Doc. No. 10), which is now the operative complaint in this matter and is deemed filed as of the

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date it was lodged with the court, April 3, 2017. Plaintiff may only amend once as a matter of

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course and leave of court must be sought to file any other amendments.1 Since plaintiff did not

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require the court’s permission to amend once as a matter of course, his motion to amend (Doc.

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No. 19) is denied as unnecessary and moot. Similarly, defendant’s motion to dismiss (Doc. No.

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5) directed at plaintiff’s original complaint is denied as moot due to the amendment, without

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prejudice to refiling directed to the now-operative complaint in this action.

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IT IS SO ORDERED.

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Dated:

April 5, 2017
UNITED STATES DISTRICT JUDGE

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Plaintiff’s supplemental complaint, which appears to be nearly identical to his amended
complaint, is therefore a nullity.
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