Bator et al v. Siskiyou County et al

Filing 31

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)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 ANTHONY J. BATOR, et al., 9 10 11 12 13 No. 2:16-CV-2073-GEB-CMK Plaintiffs, vs. ORDER SISKIYOU COUNTY, et al., Defendants. / 14 Plaintiffs, who are proceeding pro se, bring this civil action. Plaintiffs have filed 15 a first amended complaint (see Doc. 24) and defendants have filed objections thereto (see Docs. 16 27 and 29). Also before the court is plaintiffs’ “Notice of Non Consent Pursuant to Rule # 73 17 and Motion to Strike Pleading for Failure to Recognize Non Consent” (Doc. 26). 18 The Federal Rules of Civil Procedure provide that a party may amend his or her 19 pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is 20 one to which a responsive pleading is required, within 21 days after service of the responsive 21 pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule 22 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all 23 other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all 24 the parties. See Fed. R. Civ. P. 15(a)(2). 25 26 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 1 1 December 7, 2016.1 Plaintiffs filed their first amended complaint on January 31, 2017. Plaintiffs 2 obtained neither leave of court nor a stipulation from all defendants before doing so. Because 3 plaintiffs’ first amended complaint was filed more than 21 days after service of a motion to 4 dismiss under Rule 12(b), and without prior leave of court or stipulation of all the parties, the 5 filing is improper and will be stricken. 6 Turning to plaintiffs’ filing, plaintiffs argue that all matters in this case must be 7 heard by a District Judge because the parties have not consented to Magistrate Judge jurisdiction. 8 Plaintiffs seek an order striking motions filed by defendants. Plaintiffs misread the applicable 9 rules. In cases where the parties have not consented to Magistrate Judge jurisdiction for all 10 purposes, including entry of final judgment, the rules nonetheless refer specific matters to the 11 assigned Magistrate Judge for initial determination and recommendation to the assigned District 12 Judge. See Fed. R. Civ. P. 72(b); see also E. Dist. Cal. Local Rule 302(c). In particular, Local 13 Rule 302(c) specifically refers all matters – including dispositive motions – in pro se cases to the 14 assigned Magistrate Judge. Plaintiffs’ request to strike defendants’ motions will be denied. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Defendants’ objections are sustained; 17 2. The first amended complaint filed on January 31, 2017 (Doc. 24) is 3. Plaintiffs’ motion to strike (Doc. 26) is denied. 18 stricken; and 19 20 21 22 DATED: February 17, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 1 A second group of defendants filed a motion to remand on December 13, 2016. 2

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