Litmon v. Brown

Filing 29

ORDER Re 22 Plaintiff's Motion for Leave to File Amended Complaint. Signed by Judge Edward M. Chen on 4/15/2011. (emcsec, COURT STAFF) (Filed on 4/15/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID LITMON, JR.,

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Plaintiffs

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For the Northern District of California

United States District Court

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v.
EDMUND G. BROWN, Attorney General of
California,

No. C-10-3894 EMC

ORDER RE PLAINTIFF’S MOTION
FOR LEAVE TO FILE AMENDED
COMPLAINT

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Defendants.
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___________________________________/
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On March 15, 2011, this Court granted Defendant Brown’s motion to dismiss the complaint

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and entered judgment accordingly. On March 16, the Plaintiff, evidently without knowledge of said

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order and judgment, filed a request to file a first amended complaint adding a new cause of action –

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a claim under the Equal Protection Clause – and naming as an additional defendant, Kamala Harris.

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On March 21, 2011, this Court entered an order treating the Plaintiff’s filing as a request for

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reconsideration under either Rule 59(e) or 60(b) and seeking leave under Rule 15 to amend the

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complaint. In that order, the Court granted the motion for reconsideration to the extent it allowed

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the Plaintiff to seek leave to amend the complaint. It ordered Defendants to respond to the motion

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for such leave. After that matter was briefed, on April 14, 2011, Plaintiff filed a notice of appeal of

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the March 15 judgment.

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Having reviewed the papers, the Court is inclined to grant Plaintiff leave to file an amended

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complaint provided the complaint is limited to one claim under the Equal Protection Clause and is

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directed to Defendant Brown and not Defendant Harris (Plaintiff clarified in his reply that said claim

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is directed solely against Defendant Brown). However, because Plaintiff filed a notice of appeal,

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this Court is without jurisdiction to grant the relief Plaintiff seeks.

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Under Rule 62.1(a)(3), this Court indicates it would so grant the motion permitting leave to

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file an amended complaint and perforce set aside the judgment if the Ninth Circuit were to remand

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the matter. Plaintiff shall provide the appropriate notice to the circuit clerk as specified in Rule

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62.1(b). Alternatively, Plaintiff may dismiss the appeal. If Plaintiff does so, the judgment herein

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will be set aside, and Plaintiff shall file an amended complaint asserting on the Equal Protection

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claim against Defendant Brown within 30 days of said dismissal, and Defendant shall respond

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within 30 days thereafter.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: April 15, 2011

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_________________________
EDWARD M. CHEN
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID LITMON, JR.,

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Plaintiffs
v.
CERTIFICATE OF SERVICE

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For the Northern District of California

United States District Court

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No. C-10-3894 EMC

EDMUND G. BROWN, Attorney General of
California,

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Defendants.
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___________________________________/

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I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern

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District of California. On the below date, I served a true and correct copy of the attached, by placing

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said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing

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said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery

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receptacle located in the Office of the Clerk.

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DAVID LITMON, JR.
29083 Mission Boulevard, Apt. 207
Hayward, CA 94544

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Dated: April 15, 2011

RICHARD W. WIEKING, CLERK

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By:

/s/ Leni Doyle
Leni Doyle
Deputy Clerk