Navarrette v. 5 - Keys Charter School et al

Filing 34

ORDER RE: PLEADINGS AND PENDING MOTIONS by Judge Phyllis J. Hamilton. (pjhlc1S, COURT STAFF) (Filed on 2/16/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 4:20-cv-02579-PJH Document 34 Filed 02/16/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TOMAS NAVARRETTE,

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v.

ORDER RE: PLEADINGS AND
PENDING MOTIONS

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5 - KEYS CHARTER SCHOOL, et al.,

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United States District Court
Northern District of California

Case No. 20-cv-02579-PJH

Plaintiff,

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Defendants.

Re: Dkt. Nos. 1, 13, 21, 26, 30, 33

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On April 14, 2020, plaintiff filed the original complaint in this matter. Dkt. 1. On

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January 11, 2021, defendant Five Keys Schools and Programs (erroneously named “5 –

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Keys Charter School”) filed an answer to the original complaint. Dkt. 13. On January 27,

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2021, defendant County of Butte (“Butte County”) filed a motion to dismiss, or in the

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alternative, to transfer. Dkt. 21.

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On or before January 20, 2021, the United States Marshals Service (“USMS”)

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served California State Transportation Agency. Dkt. 22. It appears that the summons

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issued on November 6, 2020 inadvertently named that agency. However, on February 4,

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USMS served California Department of Transportation (“CalTrans”), which was named in

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an amended summons issued on February 5, 2021. Dkt. 27. On February 12, 2021,

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California State Transportation Agency filed a motion to dismiss the original complaint

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because it had been erroneously named. Dkt. 33.

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On February 4, 2021, plaintiff filed a motion for extension of time to amend his

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complaint (Dkt. 26) and on February 5, 2021, plaintiff filed a first amended complaint

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(“amended complaint”) naming CalTrans, among others. Dkt. 30. The motion for

Case 4:20-cv-02579-PJH Document 34 Filed 02/16/21 Page 2 of 2

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extension of time is GRANTED. Dkt. 26. Plaintiff may amend his complaint once as a

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matter of course in compliance with Federal Rule of Civil Procedure 15(a)(1)(B). Thus,

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plaintiff’s amended complaint found at Dkt. 30 serves as the operative pleading in this

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case. Accordingly, the court GRANTS the motion to dismiss filed by erroneously named

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California State Transportation Agency. Dkt. 33. Although a summons was issued on

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February 5, 2021, it is not clear from the docket that CalTrans has been served with the

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amended complaint.

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The answer filed by Five Keys Schools and Programs on January 11, 2021, is
clearly directed at the original complaint which has been superseded by the amended

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complaint. Five Keys Schools and Programs may revise its answer or may advise the

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United States District Court
Northern District of California

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court that the answer shall be applied to the amended complaint by March 2, 2021.

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The motion to dismiss filed by Butte County on January 27, 2021, is clearly

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directed at the original complaint which has been superseded by the amended complaint.

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Butte County may revise its motion or may advise the court that the motion shall be

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applied to the amended complaint by March 2, 2021.

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Plaintiff’s motion to appoint counsel will be resolved by separate order, but not

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until plaintiff has contacted the Legal Help Center for free legal advice. The Legal Help

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Center is located at the Oakland Courthouse, but can be reached during business hours

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by calling 415-782-8982. Information about the Help Center is also available on the

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court’s website at: https://cand.uscourts.gov/about/court-programs/legal-help-desks/.

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IT IS SO ORDERED.
Dated: February 16, 2021
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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