Edward B. Spencer v. Kelso et al

Filing 18

ORDER Granting Plaintiff's 12 Motion for Leave to File a Second Amended Complaint signed by Magistrate Judge Erica P. Grosjean on 08/29/2017. (Flores, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

EDWARD B. SPENCER,

11
12
13
14
15

Plaintiff,
vs.
J. CLARK KELSO, BRUCE BARNETT,

Case No. 1:17-cv-00724-DAD-EPG-PC
ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE A SECOND
AMENDED COMPLAINT
(ECF No. 12)

Defendants.
Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se in this action.

16

After receipt of a letter regarding a data breach, Plaintiff filed a lawsuit in state court, Kings
17

County, California Superior Court, alleging negligence by Defendants J. Clark Kelso (federal
18

receiver), Bruce Barnett (Chief Medical Officer CCHCS) and Does 1-10 (healthcare staff) in
19

securing his personal information.
20

On May 23, 2017, this case was removed from state court. (ECF No. 1). Defendant
21

Kelso thereafter filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil
22

Procedure. (ECF No. 5). On June 7, 2017, Plaintiff filed a motion to remand to state court.
23

(ECF No. 10). On June 14, 2017, Plaintiff filed the instant motion for leave to file a Second
24

Amended Complaint. (ECF No. 12).
25

Plaintiff’s motion for leave to amend was filed 19 days after Defendant Kelso’s Rule

26

12(b) motion to dismiss. Under Rule 15, Plaintiff had the right to file an amended complaint as
27

a matter of course. See Fed. R. Civ. P. 15(a)(1)(B) (providing that a plaintiff may amend its
28
1

1

pleading once as matter of course after service of a Rule 12(b) motion). Therefore, leave of

2

Court was not required. Plaintiff shall file his Second Amended Complaint within 14 days of

3

this order.

4

Plaintiff should note that although he has been given the opportunity to amend, it is not

5

for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith,

6

507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff is advised that an

7

amended complaint supersedes the original complaint, Lacey v. Maricopa County, 693 F 3d.

8

896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in itself without reference to the

9

prior or superseded pleading, Local Rule 220. Therefore, in an amended complaint, as in an

10

original complaint, each claim and the involvement of each defendant must be sufficiently

11

alleged. The amended complaint should be clearly and boldly titled “Second Amended

12

Complaint,” refer to the appropriate case number, and be an original signed under penalty of

13

perjury.

14

The Court has reviewed the underlying claim pursuant to 28 U.S.C. § 1915A. Given

15

the simplicity of the claim (i.e. negligence), the parties shall file a responsive pleading to the

16

amended pleading pursuant to Rule 15(a)(3) within 14 days after service. Defendants are free

17

to assert any available defense in any manner permitted under the Federal Rules of Civil

18

Procedure.

19

Upon the filing of the Second Amended Complaint, the other pending motions in this

20

case will most likely be mooted. See Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th

21

Cir. 1996) (after plaintiff sought leave to file a new complaint, holding that plaintiff’s action

22

equates to acceptance of federal jurisdiction and thus remand was no longer appropriate

23

because a “procedural defect in removal, such as untimeliness, does not affect the federal

24

court's subject matter jurisdiction and therefore may be waived”).
IT IS SO ORDERED.

25
26

Dated:

August 29, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

27
28
2