Grant v. United States of America, et al

Filing 67

ORDER signed by Magistrate Judge Kendall J. Newman on 10/19/11 ORDERING that the November 17, 2011 hearing on plaintiff's motion to strike is VACATED,and this matter is submitted without a hearing. Plaintiff's motion to strike defendants' 65 Amended Answer is DENIED. (Kastilahn, A)

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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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Presently before the court is plaintiff’s motion to strike defendants’ Amended

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Answer to plaintiff’s First Amended Complaint.1 Because oral argument would not materially

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aid the resolution of the pending motion, this matter is submitted on the briefs and record without

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a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has

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considered the briefs and appropriate portions of the record in this case and, for the reasons stated

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below, denies plaintiff’s motion to strike.

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Plaintiff filed his First Amended Complaint on July 21, 2011 (Dkt. No. 56), which

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was deemed appropriately filed by stipulation of the parties (Dkt. No. 55). On September 8,

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2011, defendants filed an answer to plaintiff’s First Amended Complaint (Dkt. No. 57).

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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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However, on September 29, 2011, defendants filed an Amended Answer to the First Amended

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Complaint (Dkt. No. 59).
On September 29, 2011, plaintiff filed a motion to strike defendants’ original

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answer to the First Amended Complaint (Dkt. No. 62), which the court subsequently denied as

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moot because defendants had filed their Amended Answer (see Order, Oct. 11, 2011, Dkt.

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No. 64). In the court’s order denying plaintiff’s first motion to strike, the court found that

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defendants had timely filed their Amended Answer as a matter of course pursuant to Federal

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Rule of Civil Procedure 15(a)(1)(A). (Id. at 1-2.)

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Nevertheless, on October 11, 2011, plaintiff filed a motion to strike the Amended

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Answer as untimely filed and filed without plaintiff’s consent (Dkt. No. 65). Defendants filed a

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written opposition on October 12, 2011, correctly noting that the court has already determined

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that defendants had appropriately filed their Amended Answer (Dkt. No. 66). The undersigned

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denies plaintiff’s motion to strike the Amended Answer because, as the court previously found,

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defendants timely filed their Amended Answer as a matter of course, and that filing did not

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require plaintiff’s consent. See Fed. R. Civ. P. 15(a)(1)(A) (providing that a party may amend its

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pleading once as a matter of course within 21 days after serving it).

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Accordingly, IT IS HEREBY ORDERED that:

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and this matter is submitted without a hearing.

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The November 17, 2011 hearing on plaintiff’s motion to strike is vacated

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Plaintiff’s motion to strike defendants’ Amended Answer (Dkt. No. 65) is

denied.
IT IS SO ORDERED.
DATED: October 19, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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