Schneider et al v. County of Sacramento et al

Filing 43

ORDER signed by Judge Kimberly J. Mueller on 7/10/13 STRIKING 39 First Amended Complaint. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAY L. SCHNEIDER, et al.,
Plaintiffs,

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No. 2:12-cv-2457 KJM JFM

v.

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ORDER
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COUNTY OF SACRAMENTO, et al.,

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Defendants.

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________________________________/
On September 27, 2012, plaintiffs filed a complaint raising two civil rights claims

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against the County of Sacramento, Roger Dickinson, Robert Sherry, Jeff Gamel, Cindy Storelli,

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Leighann Moffitt, Tammy Derby, Carl Simpson, and David Bieber. ECF No. 1.
On May 20, 2013, defendants County of Sacramento, Derby, Dickinson, Moffitt,

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Sherry, Simpson, and Storelli answered the complaint. ECF Nos. 28-35.

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On June 5, 2013, defendant Bieber filed a motion to dismiss. ECF No. 37.

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On June 26, 2013, plaintiffs filed a first amended complaint and on June 28, 2013,

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filed their opposition to the motion to dismiss. ECF Nos. 39, 40. In their opposition, plaintiffs

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say they filed the First Amended Complaint to clarify their allegations against defendant Bieber.

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ECF No. 40.

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Under Rule 15(a)(1), a party may amend a pleading once as a matter of course

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within twenty-one days of serving it or “if the pleading is one to which a responsive pleading is

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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.” After that window has closed, a party must

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seek a stipulation from the opposing parties or leave of court to amend. FED. R. CIV. P. 12(a)(2).

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Under the rule, the twenty-one day period to amend as a matter of course begins on the date of

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the earliest defense action. Trujillo v. City of Newton, No. 12-2380-JAR-DJW, 2013 WL

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535747, at *1 (D. Kan. Feb. 12, 2013); Brown v. West Valley Envtl. Serv. LLC., No. 10CV210A,

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2010 WL 3369604, at *10 (W.D.N.Y. Aug. 24, 2010). In this case, the earliest defense action

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was the answers filed by defendants County of Sacramento, Dickinson, Sherry, Gamel, Storelli,

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Moffitt, Derby, and Simpson. In this case, plaintiffs could file an amended complaint without

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seeking leave of court no later than June 11, 2013. The First Amended Complaint, filed June 26,

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2013, is hereby stricken.

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IT IS SO ORDERED.
DATED: July 10, 2013.

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UNITED STATES DISTRICT JUDGE

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