Garcia v. Hernandez et al

Filing 15

ORDER regarding Plaintiff's document entitled "First Amendment" 14 by Magistrate Judge Elizabeth D. Laporte. If Plaintiff wishes to file an amended complaint, he must seek leave of this Court to do so, and provide an explanation as to why leave should be granted. (shyS, COURT STAFF) (Filed on 11/6/2015)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PERFECTO BAUER GARCIA, Case No. 15-cv-04045-EDL Plaintiff, 8 v. ORDER REGARDING DKT. NO. 14 9 10 STEVE POTTER, Defendant. United States District Court Northern District of California 11 12 13 On September 4, 2015, pro se plaintiff Perfecto Garcia filed a complaint against the City 14 of Napa, the Police Chief, and various individual officers. This Court granted Plaintiff’s 15 application to proceed in forma pauperis and sua sponte dismissed the complaint with leave to 16 amend. In the order dismissing the complaint, the Court required Plaintiff to clearly state the basis 17 for federal court jurisdiction and make clear which factual allegations and claims relate to which 18 defendants, and stated that the amended complaint should not contain factual allegations 19 previously addressed in the Court’s order dismissing the earlier related case with prejudice. 20 On October 14, 2015, Plaintiff timely filed an amended complaint that minimally complied 21 with the Court’s order. On October 20, 2015, the Court ordered that the amended complaint be 22 served on Defendant. On November 4, 2015, Plaintiff filed a document entitled “First 23 Amendment.” See Dkt. No. 14. Pursuant to Federal Rule of Civil Procedure 15 (a), a party may 24 amend its pleading once as a matter of course under certain circumstances, and in all other cases a 25 party may amend its pleading only with the opposing party’s consent or leave of court, which 26 should be given when justice so requires. Plaintiff has previously amended his complaint, so he 27 may not amend again “as a matter of course.” See 15(a)(1). Further, Plaintiff has not obtained 28 Defendant’s consent to the amendment or requested leave of Court to file an amended complaint 1 as required by Rule 15(a)(2). If Plaintiff wishes to file an amended complaint, he must seek leave 2 of this Court to do so, and provide an explanation as to why leave should be granted. 3 Additionally, Plaintiff’s “First Amendment” does not comply with Local Civil Rule 10-1, 4 which requires that “[a]ny party filing or moving to file an amended pleading must reproduce the 5 entire proposed pleading and may not incorporate any part of a prior pleading by reference. 6 Plaintiff shall comply with this rule if he seeks leave to file an amended complaint. 7 Finally, Plaintiff’s “First Amendment” attaches a subpoena to Defendant. Pursuant to 8 Federal Rule of Civil Procedure 26(d), “[a] party may not seek discovery from any source before 9 the parties have conferred as Required by Rule 26(f) . . .” There is no indication that the parties have conducted a Rule 26(f) conference, especially given that Defendant was only served on 11 United States District Court Northern District of California 10 October 29, 2015, and this discovery is therefore premature and should not be served. 12 13 14 IT IS SO ORDERED. Dated: November 6, 2015 15 ________________________ ELIZABETH D. LAPORTE United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PERFECTO BAUER GARCIA, Case No. 15-cv-04045-EDL Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 STEVE POTTER, Defendant. United States District Court Northern District of California 11 12 13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 14 15 16 17 18 That on November 6, 2015, I SERVED a true and correct copy(ies) of the attached order, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 19 20 21 Perfecto Bauer Garcia 2006 Swan Way Fairfield, CA 94533 22 23 24 25 Dated: November 6, 2015 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Stephen Ybarra, Deputy Clerk to the Honorable ELIZABETH D. LAPORTE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?