Celentano v. American with Disabilities Office et al

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/11/12 GRANTING 7 Motion to Amend the Complaint. Plaintiff is GRANTED 30 days from the date of service of this order to file a second amended complaint. The amended complaint must bear the doc ket number assigned to this case and must be labeled "Second Amended Complaint." Plaintiff must file an original and 2 copies of the second amended complaint. If plaintiff fails to file a second amended complaint, the undersigned may recommend that this case be dismissed for failure to prosecute and/or for failure to comply with court orders. (Meuleman, 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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GEORGIA A. CELENTANO,
Plaintiff,

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No. CIV 11-3456 JAM EFB PS

vs.

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AMERICANS WITH DISABILITIES
(ADA) OFFICE, SACRAMENTO
SUPERIOR COURT; SHELLEYANNE
W.L. CHANG, SACRAMENTO
SUPERIOR COURT, and ROES 1-10,

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Defendants.

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ORDER
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This case, in which plaintiff is proceeding in propria persona, was referred to the

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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On February 24,

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2012, the court granted plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. Dckt. No. 4. The court also granted plaintiff’s request for this court to delay

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consideration of the sufficiency of her action until an amended complaint was filed and provided

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plaintiff thirty days to file an amended complaint. Id. at 3.

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Plaintiff filed a first amended complaint on March 26, 2012. Dckt. No. 6. However, on

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April 6, 2012, plaintiff filed a motion for leave to file a second amended complaint and a request

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that the court defer consideration of the sufficiency of her action until that second amended
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complaint is filed. Dckt. No. 7. Plaintiff contends that she named the wrong defendants and

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claims in the first amended complaint and requests leave to file a second amended complaint to

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name the proper defendants and claims. Id. at 2, 4.

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Rule 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course

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within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading

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is required, 21 days after service of a responsive pleading or 21 days after service of a motion

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under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). Rule 15(a)(2)

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provides that “[i]n all other cases, a party may amend its pleading only with the opposing party’s

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written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Because plaintiff has already

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amended her complaint, plaintiff needs leave of court to file a second amended complaint.

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Rule 15(a)(2) further provides that “[t]he court should freely give leave when justice so

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requires.” Id. The policy of freely granting leave to amend should be applied with “extreme

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liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When

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determining whether to grant leave to amend under Rule 15(a), a court should consider the

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following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to

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the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). According to the Ninth Circuit,

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“the crucial factor is the resulting prejudice to the opposing party,” and the burden of showing

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that prejudice is on the party opposing amendment. Howey v. United States, 481 F.2d 1187,

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1190 (9th Cir. 1973); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

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2003); DCD Programs, 833 F.2d at 187. Granting or denying leave to amend rests in the sound

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discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S.

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Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).

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Here, although plaintiff filed her initial complaint in this court over three months ago,

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there is no indication that plaintiff, who is appearing pro se, has unduly delayed in making the

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current request or that her request for leave to file a second amended complaint is in bad faith.

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Further, the court cannot say at this time that amendment would be futile, and because

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defendants have not yet been served or appeared in this action, amendment would not be

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prejudicial to defendants. Accordingly, plaintiff’s request to file a second amended complaint

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will be granted, and plaintiff’s first amended complaint will not be screened or served at this

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time.

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Plaintiff is directed to file her second amended complaint within 30 days of the date of

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service of this order. If plaintiff fails to do so, the court may recommend that this case be

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dismissed for failure to prosecute and/or for failure to comply with court orders. See Fed. R.

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Civ. P. 41(b); see also Local Rule 110. Plaintiff is reminded that the court cannot refer to prior

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pleadings in order to make an amended complaint complete. Local Rule 220 requires that an

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

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

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Accordingly, once plaintiff files a second amended complaint, the first amended complaint no

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longer serves any function in the case. Therefore, “a plaintiff waives all causes of action alleged

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in the original complaint which are not alleged in the amended complaint,” London v. Coopers &

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Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint

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are no longer defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Accordingly, IT IS ORDERED that:

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1. Plaintiff’s motion for leave to file a second amended complaint, Dckt. No. 7, is

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granted; and

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2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint. The amended complaint must bear the docket number assigned to this case

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and must be labeled “Second Amended Complaint.” Plaintiff must file an original and two

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copies of the second amended complaint. If plaintiff fails to file a second amended complaint,

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the undersigned may recommend that this case be dismissed for failure to prosecute and/or for

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failure to comply with court orders. See Fed. R. Civ. P. 41(b); see also Local Rule 110.

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DATED: April 11, 2012.

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