Rubang v. NAF-Human Resources

Filing 12

ORDER signed by Magistrate Judge Allison Claire on 2/11/16 ORDERING that Plaintiff's February 1, 2016, FAC 10 is hereby STRICKEN; and Defendants' motion to strike 11 is DENIED as moot. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TEODORO G. RUBANG,

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No. 2:15-cv-02195-KJM-AC

Plaintiff,
v.

ORDER

NAF-HUMAN RESOURCES, et al.,
Defendants.

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

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2016, the court issued findings and recommendations that recommended defendants’ November

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30, 2015, motion to dismiss be granted with leave to amend. ECF No. 9. Those Findings and

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Recommendations remain pending. On February 1, 2016, plaintiff filed an FAC. ECF No. 10.

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Rule 15(a) allows parties to amend their pleadings “once as a matter of course” within 21

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days after serving it, or 21 days after service of a responsive pleading or motion. “In all other

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cases, a party may amend its pleading only with the opposing party’s written consent or the

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court’s leave.” Id. Plaintiff’s FAC was filed (1) more than 21 days after his original complaint

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was served and defendants’ motion to dismiss was filed, and (2) without the court’s leave or

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defendants’ written consent. In addition, plaintiff’s FAC was filed before the undersigned’s

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recommendation to grant defendants’ motion to dismiss with leave to amend could be ruled on by

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the presiding district judge. Accordingly, the court finds that plaintiff’s FAC was filed in
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violation of Rule 15(a) and this court’s instructions. Plaintiff’s FAC will be therefore be stricken.
Plaintiff is informed that when the magistrate judge issues Findings and

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Recommendations, the district judge makes the final ruling. A recommendation for leave to

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amend is not an order granting leave to amend. Plaintiff may re-file his FAC only when, and if,

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the presiding district judge adopts the undersigned’s recommendation to dismiss his complaint

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with leave to amend.

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In accordance with the foregoing, THE COURT HEREBY ORDERS that:

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1. Plaintiff’s February 1, 2016, FAC (ECF No. 10) is hereby STRICKEN; and

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2. Defendants’ motion to strike (ECF No. 11) is DENIED as moot.

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DATED: February 11, 2016

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