Elder-Evins v. Casey et al

Filing 188

ORDER by Judge ARMSTRONG granting 173 Motion for Extension of Time to Amend 1 Complaint,, (lrc, COURT STAFF) (Filed on 12/13/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 ANNETTE SHARLENE ELDER-EVINS, Case No: C 09-05775 SBA TR., 8 Plaintiff, ORDER 9 vs. Dkt. 173 10 MICHAEL J. CASEY, et al., 11 Defendants. 12 13 The parties are presently before the Court on pro se Plaintiff Annettee Sharlene 14 Elder-Evins’ (“Plaintiff”) motion to enlarge time to file a second amended complaint 15 (“SAC”). Dkt. 173. Defendant Daniel Shacklett and the Municipal Doe Defendants 16 oppose the motion. Dkt. 179. Having read and considered the papers filed in connection 17 with this matter and being fully informed, the Court hereby GRANTS the motion, for the 18 reasons stated below. 19 On January 31, 2011, this Court issued an Order dismissing portions of Plaintiff’s 20 first amended complaint with prejudice, but permitted her to amend other portions by filing 21 an amended pleading. Dkt. 106. The Court directed Plaintiff to file a SAC consistent with 22 this Court’s Order within twenty-one (21) days of the date of that Order. Id. Plaintiff did 23 not do so. Instead, Plaintiff filed a motion for extension of time to file a SAC on March 15, 24 2011. Dkt. 114. On May 25, 2011, Plaintiff filed another motion for extension of time to 25 file a SAC. Dkt. 133. 26 On September 13, 2011, this Court issued an Order directing Plaintiff to file a SAC 27 consistent with the Court’s January 31, 2011 Order within twenty (20) days of the date of 28 that Order. Dkt. 167. Plaintiff, again, failed to do so. On October 6, 2011, Plaintiff filed 1 2 another motion for extension to file a SAC. Dkt. 173. Here, because it is not absolutely clear that Plaintiff cannot amend her pleading to 3 state cognizable claims for relief, and because Plaintiff is a pro se litigant, the Court grants 4 Plaintiff leave to file a SAC. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A 5 pro se litigant must be given leave to amend his or her complaint, and some notice of its 6 deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be 7 cured by amendment.”). Accordingly, 8 IT IS HEREBY ORDERED THAT: 9 1. Plaintiff’s motion for enlargement of time to file a SAC is GRANTED. 10 Plaintiff shall file a SAC consistent with this Court’s Order of January 31, 2011 within 11 twenty-one (21) days of the date of this Order. Plaintiff is reminded to address the 12 deficiencies of the first amended complaint as identified by this Court in its Order of 13 January 31, 2011. Plaintiff is also reminded of her obligation to allege facts and claims 14 only to the extent that she may do so in good faith. Fed. R. Civ. P. 11. If Plaintiff timely 15 amends her pleading, Defendants shall respond consistent with the Federal Rules of Civil 16 Procedure. The Court cautions Plaintiff that if she fails to timely amend her pleading, the 17 Court will not grant another extension of time for Plaintiff to file a SAC. See Swanson v. 18 U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (granting or denying leave to amend 19 rests in the sound discretion of the trial court); Fidelity Financial Corp. v. Federal Home 20 Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986) (a “court’s discretion to 21 deny leave to amend is particularly broad where the court has already given the plaintiff an 22 opportunity to amend his complaint”). The Court further cautions Plaintiff that if she fails 23 to timely file a SAC, the Court will dismiss with prejudice those claims in which the Court 24 dismissed with leave to amend in its Order of January 31, 2011. 25 2. 26 IT IS SO ORDERED. 27 This Order terminates Docket No. 173. Dated: December 12, 2011 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 28 -2- 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ANNETTE SHARLENE ELDER-EVINS, 4 Plaintiff, 5 v. 6 MICHAEL J. CASEY et al, 7 Defendant. / 8 9 Case Number: CV09-05775 SBA 10 CERTIFICATE OF SERVICE 11 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 13 14 15 That on December 13, 2011, I SERVED a true and correct copy(ies) of the attached, 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. 16 17 18 19 Annette Sharlene Elder-Evins Guenocamata Sovereign Trust Guenocamata Rancheria 948 Leddy Avenue Santa Rosa, CA 95407-6601 20 21 22 Dated: December 13, 2011 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 23 24 25 26 27 28 -3-

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