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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SEAN O’TOOLE, et al.,
Plaintiffs,

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v.
ORDER STRIKING AMENDED
COMPLAINT

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CITY OF ANTIOCH, et al.,
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For the Northern District of California

United States District Court

No. C 11-1502 PJH

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Defendants.
_______________________________/

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On June 21, 2011, plaintiffs filed an amended complaint without the opposing

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parties’ written consent or leave of court pursuant to FRCP 15(a)(2). Because defendants

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filed a motion to dismiss claims alleged in the complaint pursuant to FRCP 12(b)(6) on April

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19, 2011, plaintiffs’ time to amend as of right within 21 days after service of that motion has

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expired. FRCP 15(a)(1). The court therefore STRIKES the amended complaint as

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improperly filed.

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However, plaintiffs’ attempt to amend the complaint may suggest that plaintiffs are

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aware of certain deficiencies in the original complaint. Accordingly, plaintiffs may file a

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motion for leave to amend the complaint, or may enter into a stipulation with defendants

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that plaintiffs can amend the complaint. As the original complaint remains the operative

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complaint, defendants’ motion to dismiss remain on calendar for hearing on July 27, 2011.

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If plaintiffs move to amend the complaint before defendants’ motion is heard, then

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the court would find it in the interest of judicial economy to first address the grounds for

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amendment, which may obviate the need to decide defendants’ motion. The parties

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shall meet and confer within ten days and attempt to agree on an approach that will

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streamline this process.

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IT IS SO ORDERED.

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Dated: June 22, 2011

______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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