Bretches v. Kirkland

Filing 79

ORDER by Judge Jeffrey S. White DENYING 66 Motion to Dismiss and GRANTING 70 Motion to File Amended Complaint. (jswlc2, COURT STAFF) (Filed on 12/22/2009)

1 2 3 4 5 6 7 8 9 10 v. RICHARD KIRKLAND, Defendant. / ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION TO FILE UNTIMELY COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DALE BRETCHES, Plaintiff, No. C 06-05277 JSW

United States District Court

11
For the Northern District of California

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Now before the Court is the motion filed by Defendant Kirkland to dismiss the case pursuant to Federal Rule of Civil Procedure 41(b) based on Plaintiff Bretches' failure to comply with this Court's order dated September 16, 2009. In that order, the Court ordered Plaintiff to file a Second Amended Complaint within ten days of September 16, 2009. Plaintiff failed to do so. Also before the Court is Plaintiff's motion to file an untimely amended complaint and for relief based on excusable neglect. Essentially, Plaintiff's counsel argues that he failed to receive notice of this Court's order dated September 16, 2009 and inadvertently neglected to file the amended complaint timely. Counsel claims that he failed to receive the ECF notification that the order had been issued. The Court finds these motions appropriate for decision without oral argument. N.D. Civ. L.R. 7-1(b). Accordingly, the Court HEREBY VACATES the hearing date of January 8, 2010. Having carefully reviewed the parties' papers, considered their arguments and the relevant legal authority, the Court hereby DENIES Defendant's motion to dismiss and

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GRANTS Plaintiff's motion to file an amended complaint. The Court admonishes counsel to follow all ECF notifications carefully and that failure to comply with this Court's orders may result in sanctions in the future. Plaintiff may file a Second Amended Complaint by no later than ten days of this order. Defendants shall have thirty days from the date of the filing of the Second Amended Complaint in which to respond. IT IS SO ORDERED.

Dated: December 22, 2009

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

United States District Court

11
For the Northern District of California

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