Grant v. United States of America, et al

Filing 64

ORDER signed by Magistrate Judge Kendall J. Newman on 10/7/2011 ORDERING 62 Plaintiff's Motion to Strike is DENIED as MOOT: and pltf's # 63 motion for leave to file a Second Amended Complaint shall remain on calendar on 11/10/2011. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK A. GRANT,

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Plaintiff,

No. 2:11-cv-00360 LKK KJN PS

v.
UNITED STATES OF AMERICA,
et al.,

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Defendants.
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ORDER
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Two motions are presently set to be heard by the undersigned on November 10,

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2011: (1) plaintiff’s motion to strike portions of defendants’ answer to the First Amended

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Complaint (Dkt. No. 62); and (2) plaintiff’s motion for leave to further amend his First Amended

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Complaint (Dkt. No. 63).1 The undersigned denies plaintiff’s motion to strike as moot, but will

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hear plaintiff’s motion for leave to amend on November 10, 2011, if the parties are unable to

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stipulate to such further amendment in advance of the hearing.

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On September 8, 2011, defendants filed their answer to plaintiff’s First Amended

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Complaint. (Dkt. No. 57.) However, on September 29, 2011, defendants filed a timely

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Amended Answer to the First Amended Complaint as a matter of course (Dkt. No. 59). See Fed.

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This case proceeds before the undersigned pursuant to Eastern District of California Local
Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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R. Civ. P. 15(a)(1)(A) (providing that a party may amend its pleading once as a matter of course

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within 21 days after serving it). On September 29, 2011, plaintiff filed his motion to strike

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portions of defendants’ original answer. However, because defendants’ Amended Answer is now

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defendants’ operative answer, plaintiff’s motion to strike the previously filed answer is denied as

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moot.

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Plaintiff’s motion for leave to file a further amended complaint notes that plaintiff

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did not seek defendants’ consent to any further amendment prior to filing the motion. However,

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plaintiff essentially seeks such consent within the motion. If defendants consent to permit

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plaintiff to further amend the First Amended Complaint, plaintiff’s motion for leave to amend

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will be mooted. If defendants do not consent—and nothing in this order or the Federal Rules of

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Civil Procedure compels defendants to consent to such amendment—the undersigned will

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resolve plaintiff’s motion for leave to amend after a hearing to be conducted on November 10,

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2011. Nothing in this order should be construed as altering the briefing schedule provided in

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Local Rule 230.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to strike (Dkt. No. 62) is denied as moot.

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2.

Plaintiff’s motion for leave to file a Second Amended Complaint shall

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remain on the undersigned’s calendar on November 10, 2011.
IT IS SO ORDERED.
DATED: October 7, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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