CSPC Dophen Corporation v. Hu

Filing 171

ORDER signed by Magistrate Judge Deborah Barnes on 2/26/2019 ORDERING plaintiff's 147 motion for leave to file a second amended complaint DENIED as having been rendered moot. Plaintiff's 150 motion for leave to file a third amended comp laint is GRANTED. Within fourteen days plaintiff shall file a copy of the third amended complaint which will serve as plaintiff's operative pleading. The hearing of the 149 , 152 , 154 , 155 , 156 , 157 , 158 , 159 motions set for 3/1/ 2019, and 3/8/2019 are CONTINUED to 3/22/2019. On or before 3/8/2019, any counsel substituting in on behalf of defendant Hu shall file a Consent Order Granting Substitution of Attorney form along with a short declaration addressing any need for additional time. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CSPC DOPHEN CORPORATION,

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No. 2:17-cv-1895 MCE DB PS

Plaintiff,

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v.

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ZHIXIANG HU,

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ORDER

Defendant.

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Defendant and counterclaimant, Dr. Zhixiang Hu, Ph.D., is proceeding in this action pro

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se. (ECF No. 68.) Accordingly, this action has been referred to the undersigned pursuant to

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Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On January 16, 2019, plaintiff filed a motion

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for leave to file a second amended complaint. (ECF No. 147.) On January 31, 2019, plaintiff

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filed a motion for leave to file a third amended complaint. (ECF No. 150.) Both motions are

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noticed for hearing before the undersigned on March 1, 2019. (ECF No. 161.)

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However, on February 15, 2019, defendant filed a statement of non-opposition to plaintiff

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filing a third amended complaint. (ECF No. 165.) Therein, defendant notes that defendant did

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oppose plaintiff’s proposed second amended complaint. (Id. at 2.) Defendant is advised that

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Local Rule 220 requires that any amended complaint be complete in itself without reference to

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prior pleadings. Thus, the third amended complaint will supersede all prior complaints. See

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Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Plaintiff’s unopposed motion for leave to file a
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third amended complaint will, therefore, be granted and plaintiff’s will be ordered to file a true

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copy of the proposed third amended complaint filed on January 31, 2019.1 (ECF No. 150-2.)

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Additionally, noticed for hearing before the undersigned on March 1, 2019, and March 8,

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2019, are numerous discovery related motions and defendant’s motion for leave to file a second

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amended counterclaim. (ECF Nos. 149, 152, 154, 155-59.) However, on February 22, 2019,

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defendant filed a proposed substitution of attorney Jack Duran, Jr. (ECF No. 167.) But it is

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unclear if attorney Duran signed that document. And the document was not filed by attorney

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Duran. The issue of whether defendant is proceeding pro se or through counsel must be decided

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prior to the resolution of the pending motions. The hearing of these motions will, therefore, be

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continued.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s January 16, 2019 motion for leave to file a second amended complaint (ECF

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No. 147) is denied as having been rendered moot;
2. Plaintiff’s January 31, 2019 motion for leave to file a third amended complaint (ECF

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No. 150) is granted;

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3. Within fourteen days of the date of this order, plaintiff shall file a copy of the third
amended complaint which will serve as plaintiff’s operative pleading;

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4. The hearing of the motions set for March 1, 2019, and March 8, 2019, (ECF Nos. 149,
152, 154, 155-59), are continued to March 22, 2019; and

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5. On or before March 8, 2019, any counsel substituting in on behalf of defendant Hu

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shall file a Consent Order Granting Substitution of Attorney form along with a short declaration

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addressing any need for additional time.

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Dated: February 26, 2019

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DLB:6
DB\orders\orders.pro se\cspc1895.cont.hrg.ord
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The true copy filed by plaintiff shall be formatted as a typical complaint and omit references to
edits from prior drafts.
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