E Clampus Vitus v. Steiner et al

Filing 28

ORDER signed by Judge Garland E. Burrell, Jr on 2/13/13 WITHDRAWING 20 Motion to Dismiss and VACATING hearing scheduled for 2/25/13. Plaintiff and Plaintiff's counsel are notified that the First Amended Complaint will be stricken unless a signed First Amended Complaint is filed on or before 2/21/13. (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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E CLAMPUS VITUS,
Plaintiff,

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v.

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DAVID L. STEINER, THOMAS PEAK,
JOHN MOORE, KARL DODGE, JOSEPH
ZUMWALT CHAPTER 169 E CLAMPUS
VITUS, and DOES 1 through 50,
Defendants.
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2:12-cv-01381-GEB-GGH
ORDER

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Defendants filed a motion to dismiss and strike Plaintiff’s

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First Amended Complaint (“FAC”). (Defs.’ Mot. to Dismiss & Strike FAC,

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ECF No. 20-1.) Defendants argue the FAC “must . . . be stricken as

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required by Rule 11” because no signature appears on the FAC (Id.

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13:23.)

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[(“Rule”)] 11 . . . require[s] that pleadings be signed by the attorney

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who files them in order to certify that the contents of the complaint

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are truthful.” (Id. 13:18–19.)

Defendants

argue

that

“Federal

Rule

of

Civil

Procedure

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Rule 11 prescribes in pertinent part: “Every pleading, written

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motion, and other paper must be signed by at least one attorney of

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record in the attorney’s name . . . . The court must strike an unsigned

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paper unless the omission is promptly corrected after being called to

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the attorney’s or party’s attention.” Fed. R. Civ. P. 11(a). Plaintiff’s

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counsel did not sign the FAC. (See First Amended Complaint 16:5, ECF No.

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18.)

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Plaintiff and Plaintiff’s counsel are notified that the FAC

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will be stricken unless a signed FAC is filed on or before February 21,

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2013. Plaintiff was previously warned in the Order filed December 18,

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2013, that “[t]his action may be dismissed with prejudice under Federal

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Rule of Civil Procedure 41(b) if Plaintiff fail[ed] to file an amended

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complaint within the [time] prescribed” in that Order. Failing to file

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a signed FAC is tantamount to not filing an FAC within the leave period

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provided in the December 18, 2013 Order. Therefore, Plaintiff is warned

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that this action could be dismissed with prejudice, if Plaintiff fails

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to sign and file the FAC on or before February 21, 2013.

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Further, since the unsigned FAC is not yet the operative

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pleading, Defendants’ motion to dismiss filed on January 22, 2013, is

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deemed withdrawn since it challenges the unsigned FAC. Therefore, the

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hearing on the motion currently scheduled for February 25, 2013, is

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VACATED.

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Dated:

February 13, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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