Minor v. FedEx Office & Print Services, Inc.

Filing 41

ORDER by Judge Lucy H. Koh denying as moot 30 Motion for Extension of Time to File; denying as moot 13 Federal Express Corporation's Motion to Dismiss; denying as moot 15 FedEx Office & Print Services, Inc.'s and Lance Freitas's Motion to Dismiss.(lhklc3, COURT STAFF) (Filed on 3/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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GARY MINOR,

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Case No. 16-CV-00532-LHK

Plaintiff,

ORDER DENYING AS MOOT MOTION
TO EXTEND TIME AND FEBRUARY 8,
2016 MOTIONS TO DISMISS

v.
FEDEX OFFICE & PRINT SERVICES,
INC., et al.,

Re: Dkt. Nos. 13, 15, 30

Defendants.
On December 29, 2015, pro se Plaintiff Gary Minor (“Plaintiff”) sued Defendants FedEx

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Office and Print Services, Inc. (“FedEx Office”), Federal Express Corporation (“Express”), Lance

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Freitas (“Freitas”), and Gallagher Bassett Services, Inc. (“Gallagher”) (collectively,

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“Defendants”). ECF No. 6. On February 8, 2016, FedEx Office, Freitas, and Express filed

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motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 13 (Motion of

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FedEx Office and Freitas), 15 (Motion of Express). On March 1, 2016, Plaintiff filed a First

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Amended Complaint. ECF No. 27. Before the Court is Plaintiff’s unopposed motion “requesting

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approval for missed deadline to file rely [sic],” which the Court interprets as a request to excuse

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the untimeliness of the First Amended Complaint. ECF No. 30. However, for the reasons stated

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Case No. 16-CV-00532-LHK
ORDER DENYING AS MOOT MOTION TO EXTEND TIME AND FEBRUARY 8, 2016 MOTIONS TO
DISMISS

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below, the Court finds that Plaintiff’s First Amended Complaint is not untimely.

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Plaintiff may amend the complaint once as a matter of course within “21 days after service

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of a motion under Rule 12(b).” Fed. R. Civ. P. 15(a)(1)(B). Express served the motion to dismiss

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by mail on February 8, 2016. ECF No. 13-1. FedEx Office and Freitas served their motion to

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dismiss, also by mail, on February 9, 2016. ECF No. 19. Because service was made by mailing

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the motions to dismiss to Plaintiff’s last known address, the deadline to amend the pleadings is

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extended by “3 days . . . after the period would otherwise expire.” Fed. R. Civ. P. 6(d).

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Accordingly, Plaintiff had 24 days from February 8, 2016, or until March 3, 2016, to amend the

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pleadings in response to Express’s motion to dismiss. Plaintiff had until March 4, 2016 to amend
the pleadings in response to FedEx Office’s and Freitas’s motion to dismiss. Plaintiff filed the

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United States District Court
Northern District of California

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First Amended Complaint on March 1, 2016. Consequently, Plaintiff’s First Amended Complaint

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is timely and the Court DENIES as moot Plaintiff’s motion to approve the filing of an untimely

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First Amended Complaint.

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Moreover, the Court DENIES as moot the February 8, 2016 motions to dismiss filed by

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FedEx Office, Freitas, and Express. First, these motions to dismiss do not address the First

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Amended Complaint. See Lasher v. City of Santa Clara, 2011 WL 1560662, at *2 (N.D. Cal. Apr.

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25, 2011) (denying motion to dismiss as moot after amended complaint was filed). Second,

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FedEx Office, Freitas, and Express have all filed new motions to dismiss in response to the First

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Amended Complaint. ECF Nos. 33 (Motion of FedEx Office and Freitas); 38 (Motion of

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Express). None of these motions claim that the First Amended Complaint is untimely.

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Additionally, FedEx Office and Freitas expressly state that the “instant Motion to Dismiss replaces

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Defendants’ prior February 9, 2016 Motion to Dismiss.” ECF No. 33 at 4 n.5.

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The Court cautions Plaintiff that Plaintiff may not amend the complaint again as a matter

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of right. See Fed. R. Civ. P. 15. The deadline for Plaintiff to oppose Gallagher’s motion to

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dismiss is March 25, 2016. The deadline for Plaintiff to oppose FedEx Office’s and Freitas’s

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motion to dismiss is March 28, 2016. The deadline for Plaintiff to oppose Express’s motion to

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Case No. 16-CV-00532-LHK
ORDER DENYING AS MOOT MOTION TO EXTEND TIME AND FEBRUARY 8, 2016 MOTIONS TO
DISMISS

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dismiss is March 30, 2016.
Plaintiff is encouraged to continue seeking advice from the Federal Pro Se Program.

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Appointments may be made with the Federal Pro Se Program by calling [phone], or by

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stopping by Room 2070 at the San Jose Courthouse, 280 South First Street, San Jose, CA 95113.

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For additional guidance in filing the oppositions, Plaintiff may access the Pro Se Handbook at

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http://cand.uscourts.gov/prosehandbook, and may access a sample opposition to a motion to

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dismiss at http://cand.uscourts.gov/Legal-Help-Center-Templates.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: March 18, 2016
______________________________________
LUCY H. KOH
United States District Judge

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Case No. 16-CV-00532-LHK
ORDER DENYING AS MOOT MOTION TO EXTEND TIME AND FEBRUARY 8, 2016 MOTIONS TO
DISMISS