Bator et al v. Siskiyou County et al
ORDER signed by Magistrate Judge Craig M. Kellison on 2/17/2017 ORDERING that Defendants' Objections are SUSTAINED; the 24 First Amended Complaint filed on 1/31/2017 is STRICKEN; and Plaintiff's 26 Motion to Strike is DENIED. (Jackson, T)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ANTHONY J. BATOR, et al.,
SISKIYOU COUNTY, et al.,
Plaintiffs, who are proceeding pro se, bring this civil action. Plaintiffs have filed
a first amended complaint (see Doc. 24) and defendants have filed objections thereto (see Docs.
27 and 29). Also before the court is plaintiffs’ “Notice of Non Consent Pursuant to Rule # 73
and Motion to Strike Pleading for Failure to Recognize Non Consent” (Doc. 26).
The Federal Rules of Civil Procedure provide that a party may amend his or her
pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is
one to which a responsive pleading is required, within 21 days after service of the responsive
pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule
12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all
other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all
the parties. See Fed. R. Civ. P. 15(a)(2).
Here, plaintiffs filed their original complaint on August 30, 2016. A timely
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) was served and filed on
December 7, 2016.1 Plaintiffs filed their first amended complaint on January 31, 2017. Plaintiffs
obtained neither leave of court nor a stipulation from all defendants before doing so. Because
plaintiffs’ first amended complaint was filed more than 21 days after service of a motion to
dismiss under Rule 12(b), and without prior leave of court or stipulation of all the parties, the
filing is improper and will be stricken.
Turning to plaintiffs’ filing, plaintiffs argue that all matters in this case must be
heard by a District Judge because the parties have not consented to Magistrate Judge jurisdiction.
Plaintiffs seek an order striking motions filed by defendants. Plaintiffs misread the applicable
rules. In cases where the parties have not consented to Magistrate Judge jurisdiction for all
purposes, including entry of final judgment, the rules nonetheless refer specific matters to the
assigned Magistrate Judge for initial determination and recommendation to the assigned District
Judge. See Fed. R. Civ. P. 72(b); see also E. Dist. Cal. Local Rule 302(c). In particular, Local
Rule 302(c) specifically refers all matters – including dispositive motions – in pro se cases to the
assigned Magistrate Judge. Plaintiffs’ request to strike defendants’ motions will be denied.
Accordingly, IT IS HEREBY ORDERED that:
Defendants’ objections are sustained;
The first amended complaint filed on January 31, 2017 (Doc. 24) is
Plaintiffs’ motion to strike (Doc. 26) is denied.
DATED: February 17, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
A second group of defendants filed a motion to remand on December 13, 2016.
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