Yousif v. San Mateo County Sheriff et al

Filing 112

ORDER DENYING MOTION TO CORRECT COMPLAINT by Hon. William Alsup denying 101 Motion to Amend/Correct ;.(whalc1, COURT STAFF) (Filed on 2/21/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 OSMAN YOUSIF, 11 For the Northern District of California United States District Court 10 12 13 14 15 Plaintiff, No. C 15-04887 WHA v. DEPUTY SHERIFF DEFRANCE McLEMORE and DOES 1–100, ORDER DENYING MOTION TO CORRECT COMPLAINT Defendant. / 16 17 The deadline to seek pleading amendments was July 31, 2016 (Dkt. No. 55). On 18 February 1, 2017, plaintiff sought leave to file a second amended complaint to correct a 19 “typographical mistake” in the first amended complaint made by counsel upon “jumping into 20 the case” (Dkt. No. 101). Specifically, counsel mistakenly wrote that the incident in question 21 occurred on September 15, 2015, although all agree it occurred on September 20, 2015. 22 Plaintiff’s proposed second amended complaint fails to remove allegations relating to 23 incidents and defendants that have been dismissed in prior orders. Those allegations remain 24 part of the operative pleading although plaintiff had been directed to amend his complaint to 25 conform to the prior orders on motions to dismiss. Plaintiff also failed to seek leave or to show 26 cause for amending the scheduling order such that this motion could be considered timely. 27 Plaintiff’s complete lack of diligence in seeking this amendment is alone a sufficient reason to 28 deny the motion. 1 Defendant responded to plaintiff’s motion two days late. He acknowledges that the date 2 of the sole incident in question was correctly stated in the initial complaint and in plaintiff’s 3 Rule 26 disclosures. Defendant has had notice of this date long before plaintiff’s counsel’s 4 error. 5 Plaintiff’s proposed second amended complaint would add unnecessary confusion to our 6 record, which has already become mired in procedural snafus. Moreover, it would perpetuate 7 the confusion caused by plaintiff’s failure to conform his complaint to reflect the parties and 8 claims actually in issue. Accordingly, the motion is DENIED, although defendant will not be 9 heard to dispute that the incident in question occurred on September 20, 2015, as alleged in the proposed second amended complaint (as well as the initial complaint and the Rule 26 11 For the Northern District of California United States District Court 10 disclosures). 12 Plaintiff’s request for an order to show cause regarding sanctions is DENIED. Defendant 13 should have timely responded, but his two-day delay in responding to plaintiff’s motion to 14 amend the pleadings more than six months after the deadline to do so does not warrant 15 sanctions. 16 17 IT IS SO ORDERED. 18 19 Dated: February 21, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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