Evans v. County of Santa Clara Probation Department

Filing 78

ORDER by Judge Whyte Striking Amended Complaint 64 Without Prejudice And Striking Notice of Removal 68 (rmwlc3, COURT STAFF) (Filed on 9/8/2008)

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ORDER STRIKING AMENDED COMPLAINT WITHOUT PREJUDICE AND STRIKING NOTICE OF REMOVAL--No. C-06-03299 RMW

E-FILED on 9/8/08

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JAMAR EVANS, Plaintiff, v. COUNTY OF SANTA CLARA PROBATION DEPARTMENT, Defendants.

No. C-06-03299 RMW ORDER STRIKING AMENDED COMPLAINT WITHOUT PREJUDICE AND STRIKING NOTICE OF REMOVAL [Re Docket No. 64, 68, 72]

The court hereby strikes without prejudice plaintiff's Amended Complaint filed on February 19, 2008 and his purported removal of this case to state court. On February 19, 2008, plaintiff filed a "Notice of Amended Complaint" without leave of the court. The County previously field an Answer on September 14, 2006, an Amended Answer on November 17, 2006 and a Second Amended Answer on January 26, 2007. These were all filed with permission of the court. Plaintiff has not obtained leave of court to file an Amended Complaint. On May 20, 2008, plaintiff filed a "Notice to Adverse Parties of Filing of Notice of Removal." The parties have filed various briefs and correspondence regarding the Amended Complaint and the purported removal filed by plaintiff.

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The court on its own motion strikes the Amended Complaint and the purported notice of Removal. However, these actions are taken without prejudice. With respect to the Amended Complaint, Federal Rule of Civil Procedure 15(a)(2) requires leave of court in order to amend a complaint once an answer has been filed. Plaintiff has obtained no such leave. Plaintiff cannot "remove" a case filed in federal court to state court. however, if a plaintiff drops all of his federal claims, the court may no longer have a basis for jurisdiction. here, it appears that the Amended Complaint is based solely on state law claims. Therefore, if plaintiff files a notice of motion for leave to file an amended complaint and the court grants it, then the court may dismiss the case for lack of a basis for continued jurisdiction. The court does not have the power to "remove" the case to state court. However, the dismissal would be without prejudice so plaintiff could proceed in state court provided he has complied with any claim filing requirements and files before the expiration of any period of the applicable statute of limitation. Plaintiff is cautioned that he may have a statute of limitation or other procedural bar to proceeding in state court. The court hereby sets a Case Management Conference for October 17, 2008 at 10:30 a.m. If plaintiff wishes to file a motion to amend his complaint, he should file the motion on or before October 3, 2008. The court suggests that if plaintiff wishes to amend, he should meet and confer with defendant first, as perhaps a stipulation could be reached that an Amended Complaint could be filed.

DATED:

9/7/08

RONALD M. WHYTE United States District Judge

ORDER STRIKING AMENDED COMPLAINT WITHOUT PREJUDICE AND STRIKING NOTICE OF REMOVAL--No. C-06-03299 RMW 2

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Notice of this document been sent to: Plaintiff: Jamar James Evans P. O. Box 25 Atwater, CA 95301 209-358-8909 PRO SE Notice of this document has been electronically sent to: Counsel for Defendants: Kevin Hammon [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated: 9/8/08

JAS Chambers of Judge Whyte

ORDER STRIKING AMENDED COMPLAINT WITHOUT PREJUDICE AND STRIKING NOTICE OF REMOVAL--No. C-06-03299 RMW 3