Hacker v. Hacker

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 7/22/15 STRIKING the 7 Amended Complaint and ORDERING plaintiff to respond to the 6 Order to Show Cause by 8/8/2015. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CASEY L. HACKER,

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No. 2:15-cv-00621-TLN-AC

Plaintiff,
v.

ORDER

MICHAEL R. HACKER,
Defendant.

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This matter is before the undersigned pursuant to Local Rule 302(c)(21). Presently before

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the court is plaintiff’s first amended complaint, ECF No. 7, which he filed without defendant’s

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consent or leave of the court.

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Federal Rule of Civil Procedure 15(a) provides, in relevant part:
(1) A party may amend its pleading once as a matter of course
within:
(A) 21 days after serving it; or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.

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Rule 15(a) therefore provides for the filing of an amended complaint once as a matter of right
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within 21 days of service of a Rule 12(b)(6) motion to dismiss. When a party can no longer
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amend a pleading as a matter of right the party must either petition the court for leave to amend or

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obtain consent from the adverse parties. Fed. R. Civ. Pro. 15(a). “If an amended pleading can

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not be made as of right and is filed without leave of court or consent of the opposing party, the

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amended pleading is a nullity and without legal effect.” Primerica Life Ins. Co. v. Davila, No.

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1:10-CV-1924 AWI SMS, 2011 WL 643395, at *2 (E.D. Cal. Feb. 17, 2011) (citing U.S. ex rel.

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Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003)).

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Plaintiff filed his first amended complaint on July 20, 2015, more than 21 days after

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defendant filed his June 11, 2015, motion to dismiss. Accordingly, plaintiff was required to

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obtain either defendant’s consent or leave of the court. Because plaintiff did neither, his first

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amended complaint is without legal effect and THE COURT HEREBY STRIKES it. The court

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also notes that it does not consider plaintiff’s first amended complaint to be a response to its July

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20, 2015, order to show cause. ECF No. 6. Plaintiff must respond to the court’s July 20, 2015,

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order to show cause by August 8, 2015.

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DATED: July 22, 2015

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