Sherman v. City of Davis

Filing 28

ORDER signed by Magistrate Judge Gregory G. Hollows on 04/11/12 ORDERING that defendant's 25 Motion to Strike is GRANTED and the 04/26/12 hearing date is VACATED; the 21 Amended Complaint is STRICKEN. (Benson, 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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JOSEPH A. SHERMAN,
Plaintiff,

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vs.

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No. CIV S-11-0820 JAM GGH PS

CITY OF DAVIS,

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Defendant.

ORDER
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Defendant’s motion to strike presently is calendared for hearing on April 26,

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2012. Having reviewed the record, the court has determined that oral argument would not be of

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material assistance in determining the pending motion. Accordingly, the court will not entertain

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oral argument, but has reviewed the motion.

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Defendant’s motion seeks to strike plaintiff’s amended complaint, filed on March

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14, 2012, as either premature or at odds with this court’s findings and recommendations. Those

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findings, issued March 6, 2012, recommended that defendant’s motion to dismiss be granted, and

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plaintiff’s complaint be dismissed with leave to amend. Defendant correctly points out that

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those findings have not yet been reviewed by the district court, and an amended complaint may

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not be filed unless and until the district court adopts the findings and recommendations. A

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cursory review of the amended complaint indicates that plaintiff has not followed the directives
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set forth in the findings and recommendations, and if they are adopted, any amended complaint

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that is filed following their adoption must adhere to the requirements set forth therein.

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Accordingly, IT IS ORDERED that:

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1. The April 26, 2012 hearing on defendant’s motion to strike is vacated from the

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calendar;

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2. The motion to strike, filed March 27, 2012, (dkt. no. 25), is granted; and

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3. The first amended complaint, filed March 14, 2012, (dkt. no. 21), is stricken.

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DATED: April 11, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076:Sherman0820.str.wpd

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