Whitsitt v. Patricio Enterprises et al

Filing 6

ORDER signed by Judge Kimberly J. Mueller on 7/31/2013. Court is DECLINING to disturb Magistrate Judge Hollow's 4/16/2013 3 Order. The balance of the 3 Order was meant to be informative ONLY and this Court has no power to 4 reconsider helpful suggestions. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT COURT OF CALIFORNIA

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WILLIAM J. WHITSITT,

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Plaintiff,

No. 2:13-cv-00118-KJM-GGH

vs.
PATRICIO ENTERS., et al.,
Defendants.

ORDER

________________________________/

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On May 17, 2013 plaintiff, proceeding pro se, filed the instant motion to

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reconsider the magistrate judge’s April 16, 2013 order dismissing plaintiff’s complaint with

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leave to amend. (ECF 4.) The magistrate judge’s order held that, while plaintiff’s original

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complaint alleging age discrimination and other claims contained sufficient facts and makes no

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frivolous claims, it did not contain a “short and plain statement as required by Fed. R. Civ. P.

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8(a)(2).” (ECF 3 at 3.) The magistrate judge noted that the complaint was thirty pages long,

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contained multiple sections with small print and single spacing, contained a large amount of

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material irrelevant to plaintiff’s claims, and repeated several passages verbatim. (Id.)

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Accordingly, the magistrate judge dismissed plaintiff’s complaint with leave to amend so that

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he could conform his pleading to the Federal Rules of Civil Procedure. (Id. at 7.) Additionally,

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the court imposed a fifteen page limit on plaintiff’s first amended complaint. (Id.)
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The balance of the April 16 order informed plaintiff about various aspects of

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law, such as sovereign immunity and the Age Discrimination in Employment Act (“ADEA”),

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but did not actually dismiss or otherwise limit plaintiff’s claims.

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In the present motion, plaintiff asks this court to reconsider: (1) the fifteen-page

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limit; (2) the discussion of sovereign immunity; and (3) the discussion of the ADEA. (ECF 4.)

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Plaintiff argues the magistrate judge committed error in limiting the length of plaintiff’s

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complaint and in discussing these areas of substantive law. (Id.)

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The court declines to disturb the April 16 order. The magistrate judge directed

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plaintiff to comply with Rule 8(a)(2) and provided guidance on how to comply. Rather than

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appeal to this court for a reconsideration of the fifteen-page limit, plaintiff should have filed a

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motion with the magistrate judge to exceed that limit before filing an amended complaint. Cf.

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Bradberry v. Schriro, No. 05-1336-PHXJAT, 2009 WL 971298, at *2 (D. Ariz. Apr. 8, 2009)

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(considering plaintiff’s motion to exceed fifteen-page limit for complaints). In that motion,

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plaintiff could have explained why fifteen pages are insufficient. The balance of the April 16

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order was meant to be informative only, and this court has no power to reconsider helpful

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suggestions.

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IT IS SO ORDERED.
DATED: July 31, 2013.

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UNITED STATES DISTRICT JUDGE

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