O'Toole et al v. City of Antioch et al

Filing 18

ORDER striking 16 Amended Complaint. Signed by Judge Phyllis J. Hamilton on 6/22/2011. (hlk, COURT STAFF) (Filed on 6/22/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 SEAN O’TOOLE, et al., Plaintiffs, 8 9 v. ORDER STRIKING AMENDED COMPLAINT 10 CITY OF ANTIOCH, et al., 11 For the Northern District of California United States District Court No. C 11-1502 PJH 12 Defendants. _______________________________/ 13 14 On June 21, 2011, plaintiffs filed an amended complaint without the opposing 15 parties’ written consent or leave of court pursuant to FRCP 15(a)(2). Because defendants 16 filed a motion to dismiss claims alleged in the complaint pursuant to FRCP 12(b)(6) on April 17 19, 2011, plaintiffs’ time to amend as of right within 21 days after service of that motion has 18 expired. FRCP 15(a)(1). The court therefore STRIKES the amended complaint as 19 improperly filed. 20 However, plaintiffs’ attempt to amend the complaint may suggest that plaintiffs are 21 aware of certain deficiencies in the original complaint. Accordingly, plaintiffs may file a 22 motion for leave to amend the complaint, or may enter into a stipulation with defendants 23 that plaintiffs can amend the complaint. As the original complaint remains the operative 24 complaint, defendants’ motion to dismiss remain on calendar for hearing on July 27, 2011. 25 If plaintiffs move to amend the complaint before defendants’ motion is heard, then 26 the court would find it in the interest of judicial economy to first address the grounds for 27 amendment, which may obviate the need to decide defendants’ motion. The parties 28 1 shall meet and confer within ten days and attempt to agree on an approach that will 2 streamline this process. 3 4 IT IS SO ORDERED. 5 6 Dated: June 22, 2011 ______________________________ PHYLLIS J. HAMILTON United States District Judge 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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