Shah v. Employment Development Department

Filing 24

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/6/2012 STRIKING the 22 First Amended Complaint, Amended Complaint due by 4/30/2012, Response due 14 days after the Amended Complaint is filed; DENYING 23 Motion to Dismiss as moot; VACATING the Motion Hearing as to 23 Motion to Dismiss; CONTINUING the Status (Pretrial Scheduling) Conference until 7/11/2012 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. Status Reports due by 6/27/2012. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FERNANDO SHAH,
Plaintiff,

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No. CIV S-11-318 GEB EFB PS

vs.
EMPLOYMENT DEVELOPMENT
DEPARTMENT,

ORDER

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Defendant.
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This case, in which plaintiff is proceeding pro se, was referred to the undersigned

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pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). On

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February 23, 2012, the court dismissed plaintiff’s complaint and granted plaintiff thirty days to

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file an amended complaint. Dckt. No. 21.

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On March 23, 2012, plaintiff filed a document labeled “First Amended Complaint.”

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Dckt. No. 22. However, the document is not an amended complaint; rather, it appears to be an

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opposition to defendant’s earlier motion to dismiss. Id. Because the motion to dismiss has

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already been granted and the newly-filed document does not comply with the requirements for

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an amended complaint, that document will be stricken. Plaintiff will be given additional time to

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file a proper amended complaint to the extent that plaintiff can properly state a claim under Title

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II of the ADA, the Rehabilitation Act of 1973, or another appropriate federal statute. See Dckt.
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No. 21 at 4.

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As indicated in the February 23, 2012 order dismissing plaintiff’s complaint, the

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amended complaint must (1) identify the specific theory or theories on which the complaint is

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based and (2) state the specific factual conduct that supports plaintiff’s right to relief on each

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such theory. Id. “In other words, plaintiff must allege that defendant violated a particular statute

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or statutes (e.g., Title II of the ADA, the Rehabilitation Act, etc.), and shall state the specific

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conduct by defendant that violates each such statute.” Id. Additionally, the amended complaint

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shall plead plaintiff’s claims in “numbered paragraphs, each limited as far as practicable to a

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single set of circumstances,” as required by Federal Rule of Civil Procedure 10(b), and shall be

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in double-spaced text on paper that bears line numbers in the left margin, as required by Eastern

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District of California Local Rules 130(b) and 130©. Any amended complaint shall also use clear

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headings to delineate each claim alleged and against which defendant or defendants the claim is

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alleged, as required by Rule 10(b), and must plead clear facts that support each claim under each

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header.

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Plaintiff is again reminded that the court cannot refer to prior pleadings in order to make

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an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files an amended complaint, the original no longer serves any function in the case.

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Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s March 23, 2012 amended complaint, Dckt. No. 22, is stricken;

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2. Defendant’s motion to dismiss plaintiff’s March 23, 2012 amended complaint, Dckt.
No. 23, is denied as moot, and the May 23, 2012 hearing thereon is vacated;
3. Plaintiff has until April 30, 2012 to file an amended complaint, as provided herein and
in the February 23, 2012 order;
4. Failure to timely file an amended complaint in accordance with this order will result
in a recommendation this action be dismissed;
5. Defendants shall file a response to plaintiff’s amended complaint within fourteen days
from the date an amended complaint is filed;
6. The May 16, 2012 status (pretrial scheduling) conference is continued to July 11,
2012 at 10:00 a.m. in Courtroom No. 24; and
7. The parties shall file status reports, as required by the May 5, 2011 order, on or before

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June 27, 2012.

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DATED: April 6, 2012.

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