Edward B. Spencer v. Kelso et al

Filing 32

ORDER TERMINATING Defendant J. Clark Kelso; ORDER TERMINATING 5 25 30 Motions as MOOT signed by Magistrate Judge Erica P. Grosjean on 11/27/2017. (Sant Agata, S)

1

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF CALIFORNIA

3
4

EDWARD B. SPENCER,

5
6
7
8

Plaintiff,
v.

Case No. 1:17-CV-00797-AWI-EPG
ORDER TERMINATING DEFENDANT J.
CLARK KELSO
ORDER TERMINATING MOTIONS AS MOOT

WILLIAM J. SCHLAERTH, et al.,

(ECF Nos. 5, 25, 30)

Defendants.

9
10
11
12
13
14
15

Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se in this action. On
May 23, 2017, this case was removed from state court. (ECF No. 1). Defendant Kelso thereafter
filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. (ECF
No. 5). On June 7, 2017, Plaintiff filed a motion to remand to state court. (ECF No. 10). On June
14, 2017, Plaintiff filed a motion for leave to file a Second Amended Complaint. (ECF No. 12).
The Court entered an Order on August 30, 2017 recognizing that Plaintiff’s motion for
leave to amend was filed 19 days after Defendant Kelso’s Rule 12(b) motion to dismiss, and

16
under Rule 15, Plaintiff had the right to file an amended complaint as a matter of course, see Fed.
17
18
19
20

R. Civ. P. 15(a)(1)(B) (providing that a plaintiff may amend its pleading once as matter of course
after service of a Rule 12(b) motion). (ECF No. 18). Plaintiff’s amended complaint was filed on
October 10, 2017. (ECF No. 24).
Defendant Kelso responded to the Second Amended Complaint by filing a motion to

21

dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF

22

No. 25). Likewise, on October 24, 2017, Defendants Bruce Barnett and CCHCS filed a Rule

23

12(b)(6) motion to dismiss. (ECF No. 26). On November 20, 2017, Plaintiff filed an opposition

24

to Defendants Bruce Barnett and CCHCS’s motion to dismiss. (ECF No. 29).

25

Also on November 20, 2017, Plaintiff filed a self-titled “Motion for an Order to Dismiss

26

Defendant J. Clark Kelso without prejudice.” (ECF No. 30). The motion moves to “dismiss

27

Defendant J. Clark Kelso from all [causes] of action.” The motion further states that Plaintiff

28

“chooses to have the case heard in State Court without J. Clark Kelso as a Defendant.”
1

1

Defendant Kelso has not filed an answer or motion for summary judgment. In light of

2

Plaintiff’s notice, the claims against Defendant Kelso have been terminated, see Fed. R. Civ. P.

3

41(a)(1)(A)(i); Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997), and dismissed

4

without prejudice. Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (“Even if the defendant

5

has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing a notice

6

of dismissal under Rule 41(a)(1).”).

7

The case shall continue against Defendants Bruce Barnett and CCHCS. As the Court

8

explained in its August 30, 2017 Order (ECF No. 18, p. 2), Plaintiff’s June 7, 2017 motion to

9

remand (ECF No. 10) is moot upon the filing of the Second Amended Complaint. See Koehnen v.

10

Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir. 1996) (after plaintiff sought leave to file a new

11

complaint, holding that plaintiff’s action equates to acceptance of federal jurisdiction and thus

12

remand was no longer appropriate because a “procedural defect in removal, such as untimeliness,

13

does not affect the federal court's subject matter jurisdiction and therefore may be waived”).

14
15
16

Thus, if Plaintiff intends to have this case proceed in state court as he has indicated in his
November 20, 2017 motion, he must either:
1) file a notice of voluntary dismissal without prejudice as to Defendants Bruce Barnett

17
18

and CCHCS in this case and re-file the case in state court; or
2) File a motion to remand for lack of subject matter jurisdiction. See 28 U.S.C. §

19
20
21
22
23

1447(c).
Accordingly, the Clerk is directed to terminate J. Clark Kelso as a Defendant and the
motions filed by Defendant Kelso (ECF Nos. 5, 25) as they are now found as moot.
The Clerk shall also terminate as moot the motion filed by Plaintiff on November 20,
2017. (ECF No. 30). Because Rule 41 is self-executing, a motion was not required.

24
25
26

IT IS SO ORDERED.
Dated:

November 27, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

27
28
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3