Ortiz v. Enhanced Recovery Company

Filing 24

ORDER signed by Magistrate Judge Deborah Barnes on 8/25/2017 ORDERING 10 the 9/1/2017 hearing of defendant's motion to strike is VACATED; Defendant's motion to strike is GRANTED; Plaintiff is GRANTED leave to file an amended complaint; The amended complaint filed 6/5/2017 is DEEMED the operative complaint in this action1; and defendant shall file a response to the 6/5/2017 amended complaint within 21 days. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RENE ORTIZ,

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No. 2:17-cv-0607 KJM DB PS
Plaintiff,

v.

ORDER

ENHANCED RECOVERY COMPANY,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On March 29, 2017, defendant Enhanced Recovery Company filed an answer to plaintiff’s

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complaint. (ECF No. 3.) On June 5, 2017, plaintiff filed an amended complaint. On June 8,

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2017, defendant filed a motion to strike. (ECF No. 10.) That motion is noticed for hearing before

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the undersigned on September 1, 2017. Defendant argues that plaintiff’s amended complaint

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should be stricken because plaintiff failed to comply with Rule 15 of the Federal Rules of Civil

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Procedure. (Id. at 3.) And defendant is correct.

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In this regard, pursuant to Rule 15, a plaintiff may amend his complaint once as a matter

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of course within twenty-one days after serving it or twenty-one days after service of a responsive

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pleading or motion pursuant to Rule 12(b). See Fed. R. Civ. P. 15. In all other cases, a plaintiff

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may amend his complaint with defendant’s written consent or the court’s leave. Id. Here, at the
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time plaintiff filed his amended complaint more than twenty-one days had lapsed since the

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defendant filed its answer and plaintiff did not seek the court’s leave or obtained defendant’s

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written consent to amend. Accordingly, defendant’s motion to strike will be granted.

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However, the court should grant leave to amend freely when justice so requires. Fed. R.

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Civ. P. 15(a). In this regard, the Supreme Court has instructed lower courts to heed carefully the

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command of Rule 15. See Foman v. Davis, 371 U.S. 178, 182 (1962). “[R]ule 15’s policy of

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favoring amendments to pleadings should be applied with extreme liberality.” DCD Programs

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Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citations and quotations omitted).
The undersigned will, therefore, construe plaintiff’s filing as a request for leave to amend,

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will grant that request, and deem the amended complaint the operative pleading in this action.

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Defendant shall file a response to the amended complaint within twenty-one days.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The September 1, 2017 hearing of defendant’s motion to strike (ECF No. 10) is

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vacated;

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2. Defendant’s June 8, 2017, motion to strike (ECF No. 10) is granted;

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3. Plaintiff is granted leave to file an amended complaint;

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4. The amended complaint filed June 5, 2017 is deemed the operative complaint in this

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action1; and

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5. Defendant shall file a response to the June 5, 2017 amended complaint within twenty-

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one days.

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Dated: August 25, 2017

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DLB:6
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In this regard, plaintiff need not file another amended complaint and shall not file another
amended complaint without complying with Rule 15.
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DB/orders/orders.pro se/ortiz0607.mts.grt

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