Van Dusen v. City of Oakland et al

Filing 255

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING ( 213 , 214 , 219 , 235 , 240 ) MOTIONS TO STRIKE THIRD AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 2/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAN VAN DUSEN,

Case No. 13-cv-05023-HSG

Plaintiff,
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v.
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CITY OF OAKLAND, et al.,
Defendants.

ORDER GRANTING MOTIONS TO
STRIKE THIRD AMENDED
COMPLAINT
Re: Dkt. Nos. 213, 214, 219, 235, 240

United States District Court
Northern District of California

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INTRODUCTION
On October 24, 2014, the Court dismissed Plaintiff’s First Amended Complaint (“FAC”)

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and permitted her “one final opportunity” to amend the complaint. See Docket No. 160. On

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November 14, 2014, pursuant to the Court’s October 24, 2014 Order, Plaintiff filed her Second

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Amended Complaint (“SAC”). See Docket No. 162. On January 30, 2015, without leave of Court

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and without consent from Defendants, Plaintiff filed her Third Amended Complaint (“TAC”). See

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Docket No. 206. On February 13, 18, 19, and 20, 2015, Defendants filed various motions to strike

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the TAC. See Docket Nos. 213, 214, 219, 235, & 240. The Court finds these motions are

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appropriate for determination without oral argument. See Civil L.R. 7-1(b). For the reasons set

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forth below, Defendants’ motions to strike the TAC are GRANTED.

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DISCUSSION
A party may amend her complaint once as a matter of course. Fed. R. Civ. P. 15(a)(1). At

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all times thereafter, amendment of the complaint may only occur with leave of court or the

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opposing party’s written consent. Fed. R. Civ. P. 15(a)(2). An amended complaint filed in

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violation of Rule 15—that is, without leave of court or consent of defendants—is “without legal

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effect.” Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998). Pursuant to Rule 12(f), courts

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may strike amended pleadings that fail to comply with the requirements of Rule 15. Sapiro v.

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Encompass Ins., 221 F.R.D. 513, 517 (N.D. Cal. 2004).

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Plaintiff did not seek leave of court to file the TAC, nor did Defendants consent to the

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filing of the TAC. See Black Decl. ¶ 7. Because the TAC was filed in violation of Rule 15, it is

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without legal effect. The SAC remains the operative complaint. The issue of leave to amend the

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SAC will be addressed when the Court rules on the pending motions to dismiss and strike the

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SAC. Defendants’ motions to strike the TAC are hereby GRANTED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: February 24, 2015
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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