Ortiz v. Diversified Consultants, Inc.

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 05/31/17 ORDERING that plaintiff's 10 First Amended Complaint is DEEMED AUTHORIZED; defendant DCI's 3 Motion to Dismiss is DENIED without prejudice as moot; any response to the first amended complaint shall be filed within 28 days. (Benson, A)

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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-0713-TLN-KJN PS
Plaintiff,

v.

ORDER

DIVERSIFIED CONSULTANTS, INC.

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Defendant.

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Presently pending before the court is defendant Diversified Consultants, Inc.’s (“DCI”)

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motion to dismiss. (ECF No. 3.) The motion requests dismissal primarily because plaintiff’s

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original complaint, initially filed as a small claims case in state superior court and subsequently

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removed to this court, fails to allege facts in support of plaintiff’s claims for alleged violation of

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the federal Fair Debt Collection Practices Act and the Fair Credit Reporting Act against defendant

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DCI. Indeed, the declaration attached to plaintiff’s original complaint references what appears to

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be a different entity titled Credit Bureau Associates. (See ECF No. 1-1.)

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After plaintiff failed to file a timely opposition to the motion to dismiss, the court

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provided plaintiff with a brief extension until June 8, 2017, to oppose the motion. (ECF No. 8.)

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On May 26, 2017, plaintiff filed both an opposition to the motion to dismiss as well as a first

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amended complaint. (ECF No. 9, 10.)
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Federal Rule of Civil Procedure 15 allows a party to amend her pleading once as a matter

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of course within 21 days after service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1)(B). If

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amendment as a matter of course is not permitted, “a party may amend its pleading only with the

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opposing party’s written consent or the court’s leave. The court should freely give leave when

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justice so requires.” Fed. R. Civ. P. 15(a)(2).
In this case, defendant’s motion to dismiss was filed and served on April 10, 2017, and

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plaintiff’s first amended complaint was filed well over 21 days later on May 26, 2017. (ECF Nos.

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3, 10.) Because the first amended complaint was not permitted as a matter of course, and

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defendant has not consented to its filing, the court could strike the first amended complaint as an

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unauthorized pleading. Nevertheless, a cursory review of the first amended complaint reveals

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that it at least addresses some of the original complaint’s deficiencies by setting forth allegations

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against DCI.1 It would make little sense to strike the first amended complaint and proceed to

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resolve a motion to dismiss challenging the original complaint, which plaintiff herself has

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effectively abandoned and wishes to amend. Therefore, in light of plaintiff’s pro se status,

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principles of judicial economy and efficiency, and the Federal Rules of Civil Procedure’s

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admonition to freely give leave to amend when justice so requires, the court instead retroactively

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authorizes the filing of plaintiff’s first amended complaint. However, plaintiff is cautioned that

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the future filing of unauthorized amended complaints or other pleadings may result in such

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pleadings being summarily stricken.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is deemed authorized pursuant to Federal Rule of

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Civil Procedure 15(a)(2).
2. Defendant DCI’s pending motion to dismiss (ECF No. 3) is DENIED WITHOUT

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PREJUDICE as moot.

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The court makes no determination at this juncture whether those allegations are sufficient to
state a claim against DCI.
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3. Any response to the first amended complaint shall be filed within 28 days of this

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order.

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IT IS SO ORDERED.

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Dated: May 31, 2017

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