Mednansky et al v. Metz et al
Filing
38
ORDER Rejecting Motion for Leave to Amend and ORDER Re December 14, 2009 Hearing on Motion to Dismiss: Currently on calendar for Monday, December 14, 2009 at 11:15 a.m. is a hearing on Defendant's motion to dismiss, which is now fully briefed. T he Court finds this motion suitable for decision without oral argument. Accordingly, the hearing is taken off calendar and this motion is taken under submission. No appearances will be required on December 14, 2009. Signed by Judge Larry Alan Burns on 12/8/09. (All non-registered users served via U.S. Mail Service)(pdc) (jrl).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
DAVID AND MARTINE MEDNANSKY, Plaintiff, vs.
CASE NO. 09cv1478-LAB (CAB) ORDER REJECTING MOTION FOR LEAVE TO AMEND; AND ORDER RE: DECEMBER 14, 2009 HEARING ON MOTION TO DISMISS
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1411 U.S.D.A. FOREST SERVICE EMPLOYEES WilLIAM METZ, OWEN 15 II C. MARTIN, RANDY MOORE, RITU AHUJA, MARLENE FINLEY, AND 16 II DONNA GROSZ,
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Defendant.
Motion for Leave to File Amended Complaint
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Currently pending before this Court and scheduled for hearing on December 14,2009 is Defendants' motion to dismiss the complaint, which was filed September 1, 2009. On December 3, 2009, Plaintiffs submitted an amended complaint for filing. On December 4, 2009, without obtaining a hearing date, Plaintiffs submitted a noticed motion (the "Motion to Amend") for leave to file the amended complaint they had submitted the day before. The Motion to Amend is attached as an appendix to this Order. Civil local Rule 7.1 (b) provides: "All hearing dates for any matters on which a ruling is required shall be obtained from the clerk of the judge to whom the case is assigned." Plaintiffs have repeatedly ignored these requirements, and have been warned twice. In the
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09c1478
1 II latest instance, the Court's order of November 23,2009 warned them: "Any future attempted 2 3
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filings that violate this rule will be rejected or stricken." The Motion to Amend is therefore REJECTED for filing. Future violations of this rule will result in the submitted documents being rejected, and may be punished by sanctions. See Civil Local Rule 83.1.
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Even if the Motion to Amend had been accepted for filing, it would have been denied
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they have offered no explanation for their decision to wait nearly three months to do so. Allowing them to amend at this point would result in needless delay, waste of judicial To the extent Plaintiffs expect dismissal
1011 resources, and an unfair burden on Defendants.
11 II will be granted and are seeking attempting to amend their complaint in anticipation of that, 12 II their motion comes too early. If the motion to dismiss is granted and the complaint can be 13 II saved by amendment, Plaintiffs may seek leave to amend at that point. Until then, however, 1411 Plaintiffs would lack guidance about how to amend. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion to Amend argues Plaintiffs have a right under Fed. R. Civ. P. 15 to amend their complaint because, Plaintiffs contend, no responsive pleading has been filed. Until December 1,2009, they would have been correct, but under newly-effective rules, their right to amend ends after 21 days following service of a motion under Rule 12(b), (e), or (t). See Rule 15(a)(1 )(8). Furthermore, the Motion to Amend does not outline the proposed amendments or explain the reasons for amendment necessary. other than generalized claims that amendment is
It is therefore not at all clear why allowing an amendment at this point would
serve the interests of justice. The submitted amended complaint is therefore being rejected by a separate order. II. Hearing on December 14, 2009. Currently on calendar for Monday, December 14 at 11:15 a.m. is a hearing on Defendants' motion to dismiss, which is now fully briefed. Pursuant to Civil Local Rule
7.1 (d)(1), the Court finds this matter suitable for decision without oral argument. Accordingly,
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09c1478
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the hearing on this matter is taken off calendar will be required
and this matter is taken under submission. December 14, 2009.
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in this matter on Monday,
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IT IS SO ORDERED.
DATED:
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l't' ell' c.q
HONORABLE LARRY ALAN BURNS
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United States District Judge
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09c1478
Appendix
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1 II David and Martine Mednansky
P.O.Eox 940
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II Pine Valley, CA 91962
619-473-7648
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United Southern
States
District
Court
District
of California
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David and Martine Mednansky Case No.09CV1478 LAB (WVG) TO Plaintiffs, NOTICE OF MOTION AND MOTION AMEND PLAINTIFFS' ORIGINAL COMPLAINT FOR VIOLATION OF CONSTITUTIONAL RIGHTS
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vs.
William Metz, Owen Martin, Randy Moore, Ritu Ahuja, Marlene Finley, Donna Grosz Defendants,
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Plaintiffs
give notice
of motion
to amend plaintiffs' rights. in
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complaint
for violation
of constitutional
II Motion to amend is accompanied II support thereof,
by plaintiffs'
memorandum
and is accompanied
by First Amended
Complaint.
Respectfully
submitted,
December
2, 2009
Plaintiff
b·:y
/IA/I/~A~
_
~lc(J __ J: 1 .
Plaintiff Martine Mednansky
David Mednansky
1 II David and Martine Mednansky P.O. Box 940 2 "Pine Valley, CA 91962 Phone: 619-473-7648
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United Southern
States District
District
Court
of California
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David
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and Martine Plaintiffs,
vs.
Mednansky Case No.09CV1478 LAB (WVG)
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PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE AMENDEDPLEADING
William Metz, Owen C. Martin, Randy Moore, Ritu Ahuja, Marlene Finley, Donna Grosz Defendants,
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Plaintiffs First Constitution, to
request
leave
of
court For:
to
file
an amended of the United
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IIpleading, II States
Amended Complaint First, wi th Firth, Civil
Violation
and Ninth Rights.
Amendments,
IIConspiracy II II 1.
Interfere
A. Introduction Plaintiffs are are William Finley, David Metz, Mednansky and Martine Mednansky; Ritu
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Iidefendants IIAhuja,
Owen C. Martin, federal
Randy Moore, employees.
Marlene
and Donna Grosz,
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1 /I
2. Plaintiffs
sued defendants rights rights. have not have filed have filed issues, filed and conspiracy
for
violation
of their with
2 IIconstitutional 3 /I consti tutional
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to interfere
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3. Defendants 4. Defendants 5. Plaintiffs 6. Plaintiffs
a responsive
pleading. to dismiss. matters.
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a motion opposition
to dismiss. to motion pleading
seek to amend their
to correct
8 IIallegations
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and clarify
and add and withdraw
II 7. Unless the opposing a court
B. Argument party can show prejudice, leave 178, to file 182, given 1,8, bad faith, an amended 227, 230 so 83 S. 1933, should grant
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11 IIor undue delay, 12 /lpleading. 13 II (1962). 14/1requires. 16111938 (1995). 17 /I 8. The court because Inc. plaintiffs
Foman v. Davis,
371 U.S.
83 S. Ct.
Leave to amend should Fed.R.Civ.P.
be freely
when justice at 182, 115 S.Ct.
15(a) (2)'
Foman, 371 U.S.
15 IICt. at 230, Nebraska
v. Wyoming, 515 U.S.
should it
allow
the
filing
of plaintiffs'
amended
18 /Ipleading 19 /I Plastics, 21 IIbecause 22 IIeducated
is appropriate
and necessary. Lines, Ltd.,
See Gamma10 1255-
v. Am. President 1994).
32 F. 3d 1244, not
20 II 56 (8th Cir.
The amendment is appropriate are pro se litigants a professional courts. pleading Moreover, duress
and necessary
and therefore
to perfect
in the manner and as plaintiffs impending acts plaintiffs reasons had threat by
23 IIform required 24 IInoted, 25 IIto seize 26 IIdefendants 27 "dUring they
by federal are under
extreme
due to the fear
their that
home and property, have intimidated of this court
as well and put proceeding.
2
as ongoing into
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the course
For these
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plaintiffs
cognitive
abilities
have been interfered
with and
thus hampered
in perfecting
their complaint. by plaintiffs' amended to is to 30
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9. Defendants pleadings because
will not be prejudiced
they have not filed a responsive and because the nature
pleading
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plaintiffs' clarify
complaint,
of amendment
issues and correct
allegations.
Phelps v. McClellan,
F.3d 658, 662-63 10. Adverse plaintiffs' v. Stream,
(6th Cir. 1994). party will not be prejudiced may cause. by any delay that Oil & Gas, Inc. Delay could in
amended pleading
Auster
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764 F.2d 381, 391-92 because
(5th Cir. 1985).
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not cause prejudice
defendants
have shown no interest in answering the
the ENE the court suggested, complaint, vacation
nor interest
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but have shown interest benefit.
in delaying
procedure
to take
for personal
11. Plaintiffs apparent
diligently
moved
to amend as soon it became Plaintiffs
that the amended
pleading
was necessary.
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became aware of the need to amend on or around Thanksgiving, therefore its submission
the time of
now is timely. once as a matter pleading, of
12. A party may amend its pleadings
course before being served with a responsive 15(a) (1) (A); Barbara v. New York Stock Exch., 49,56 (2d Cir. 1996). therefore Defendants
F.R.C.P
Inc., 99 F.3d
have not filed a responsive of law to
pleading
plaintiffs
have a right as a matter
amend their complaint 13. Plaintiffs this motion.
at this time. pleading along with
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are filing their amended
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C. Conclusion 14. Plaintiffs clarify, pleading prevent without that further submit this reveal so that For these motion to amend, correct, in an effort the issues, due process reasons, to perfect may proceed ask the a to and in an effort plaintiffs add, and withdraw matters will better delay. motion to dismiss, leave to file submitted,
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court to grant Respectfully Plaintiff
the amended pleading. December 2, 2009 /~,-~~------Plaintiff Martine Mednansky
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-yj
David Mednansky
eC~
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UNITED SOUTHERN
STATES DISTRICT DISTRICT
COURT
OF CALIFORNIA
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II DAVIDMEDNANSKet al., Y Plaintiffs,
Case No.:
09CV1478 LAB (WVG)
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DECLARATION F SERVICE O
u.s. Attorney Person served: Southern District of California
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vs.
Metz et al., Defendants,
IIWilliam
Date:
December 2, 2009
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II I, IIthat
the undersigned I served
declare
under years
penalty the
of perj ury that to this following
I am action;
!lover
the age of eighteen
and not a party
the above defendant, notice motion fully
documents: of Amended in the U. s. on District Room
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"Plaintiffs' IIComplaint Ilmail, with
and memorandum in support by placing prepaid, to:
and First postage
Amended Complaint,
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at San Diego California
II December 2, 2009 addressed IIof California, Federal
u. S. Attorney
Building
Southern Street,
Office
880 Front
,,62 93 , San Die go, CA 92 10 1- 8 8 93 . Dated this day: December 2, 2009
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.Jim Jacksof)
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6035 [.al{ Murray Blvd. La Mesa~ CA 91942-2506
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UNITED SOUTHERN
STATES DISTRICT DISTRICT
COURT
OF CALIFORNIA
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IIDAVIDMEDNANSKet al., Y Plaintiffs,
vs.
Case No.:
09CV1478 LAB (WVG) Clerk of the District of
DECLARATION F SERVICE O Person served: Court Southern California Date:
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IIWilliam
Metz et al., Defendants,
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December 2, 2009
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III,
the undersigned
declare
under years
penalty
of perj ury that a party following to this
I am action;
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lIover the age of eighteen "that I served
and not
the above defendant, notice motion
the
documents: of Amended Uon . .S
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IIPlaintiffs'
and memorandum in support
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II momEa wnth and stage st fully endprepCiampla an t San y DieacingCalifnrnia e C ail, l i i Am ed a d, i t , b pl go io th po Fi r
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December 2, 2009 addressed to: Clerk of the Court Southern IIDistrict of California, 880 Front Street, Room 4290, San Diego, IICA 9210 1- 8 900 . Dated this day: December 2, 2009
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