Avila v. McMahon et al

Filing 46

ORDER signed by Magistrate Judge Allison Claire on 10/1/2018 IT IS HEREBY ORDERED that Plaintiff's 42 motion to amend is DENIED as premature and improperly filed; DENIED as MOOT 43 motion to dismiss and 44 motion to strike and the hearing set for these matters is VACATED; Plaintiff may file an amended complaint, amending claims only as to the County in accordance with the Findings and Recommendations 39 , without filing a motion to amend. The amended complaint is due on or before 10/28/2018. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID ANTHONY AVILA,

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No. 2:18-cv-00163-JAM-AC (PS)

Plaintiff,
v.

ORDER

M.D. McMAHON, et al.,
Defendants.

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On July 17, 2018, the undersigned issued Findings and Recommendations to District

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Judge John A. Mendez recommending that plaintiff’s case against defendant County of San

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Joaquin (“the County”) be dismissed, but that plaintiff be given leave to file an amended

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complaint which would amend only the claims against the County. ECF No. 39. Before Judge

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Mendez had the opportunity to rule on the Findings and Recommendations, plaintiff submitted a

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motion to amend. ECF No. 42. The County filed a motion to dismiss plaintiff’s proposed

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amended complaint as well as a motion to strike. ECF Nos. 43 and 44. Following the entry of all

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of these motions, on September 28, 2018, Judge Mendez adopted the undersigned’s Findings and

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Recommendations in full. ECF No. 45.

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Plaintiff’s motion to amend (ECF No. 42) was premature and improperly filed while the

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Findings and Recommendations were pending, and therefore must be denied. Because the motion

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to amend is denied, the County’s motions (ECF Nos. 43 and 44) are denied as moot. Plaintiff’s
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time period for filing an amended complaint was triggered by Judge Mendez’s adoption of the

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undersigned’s Findings and Recommendations. ECF No. 45. Plaintiff has 30 days from the date

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of the adoption to file an amended complaint; no motion to amend is necessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend (ECF No. 42) is DENIED as premature and improperly filed;

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2. Defendant’s motion to dismiss (ECF No. 43) and motion to strike (ECF No. 44) are

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DENIED as moot and the hearing set for these matters is VACATED;
3. Plaintiff may file an amended complaint, amending claims only as to the County in
accordance with the Findings and Recommendations at ECF No. 39, without filing a
motion to amend. The amended complaint is due on or before October 28, 2018.
IT IS SO ORDERED
DATED: October 1, 2018

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