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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY J. BATOR, et al.,

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No. 2:16-CV-2073-GEB-CMK

Plaintiffs,
vs.

ORDER

SISKIYOU COUNTY, et al.,
Defendants.
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Plaintiffs, who are proceeding pro se, bring this civil action. Plaintiffs have filed

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a first amended complaint (see Doc. 24) and defendants have filed objections thereto (see Docs.

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27 and 29). Also before the court is plaintiffs’ “Notice of Non Consent Pursuant to Rule # 73

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and Motion to Strike Pleading for Failure to Recognize Non Consent” (Doc. 26).

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The Federal Rules of Civil Procedure provide that a party may amend his or her

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pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is

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one to which a responsive pleading is required, within 21 days after service of the responsive

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pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule

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12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all

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other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all

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the parties. See Fed. R. Civ. P. 15(a)(2).

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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
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December 7, 2016.1 Plaintiffs filed their first amended complaint on January 31, 2017. Plaintiffs

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obtained neither leave of court nor a stipulation from all defendants before doing so. Because

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plaintiffs’ first amended complaint was filed more than 21 days after service of a motion to

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dismiss under Rule 12(b), and without prior leave of court or stipulation of all the parties, the

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filing is improper and will be stricken.

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Turning to plaintiffs’ filing, plaintiffs argue that all matters in this case must be

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heard by a District Judge because the parties have not consented to Magistrate Judge jurisdiction.

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Plaintiffs seek an order striking motions filed by defendants. Plaintiffs misread the applicable

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rules. In cases where the parties have not consented to Magistrate Judge jurisdiction for all

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purposes, including entry of final judgment, the rules nonetheless refer specific matters to the

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assigned Magistrate Judge for initial determination and recommendation to the assigned District

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Judge. See Fed. R. Civ. P. 72(b); see also E. Dist. Cal. Local Rule 302(c). In particular, Local

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Rule 302(c) specifically refers all matters – including dispositive motions – in pro se cases to the

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assigned Magistrate Judge. Plaintiffs’ request to strike defendants’ motions will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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Defendants’ objections are sustained;

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The first amended complaint filed on January 31, 2017 (Doc. 24) is

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Plaintiffs’ motion to strike (Doc. 26) is denied.

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stricken; and

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DATED: February 17, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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A second group of defendants filed a motion to remand on December 13, 2016.
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