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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1 2 3 4 5 6 7 8 9 10 11 12 II 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 II 13 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, 17 18 Defendant. Motion for Leave to File Amended Complaint 19111. 20 21 22 23 24 25 26 27 28 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 - 1- 09c1478 1 II latest instance, the Court's order of November 23,2009 warned them: "Any future attempted 2 3 II II 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. 4 II 5 6 II II Even if the Motion to Amend had been accepted for filing, it would have been denied 7 II as untimely. To the extent Plaintiffs were trying to amend their complaint to avoid dismissal, 8 9 II II 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, -2 - 09c1478 1 II the hearing on this matter is taken off calendar will be required and this matter is taken under submission. December 14, 2009. 211 No appearances 3 in this matter on Monday, 411 IT IS SO ORDERED. DATED: 5 6 II l't' ell' c.q HONORABLE LARRY ALAN BURNS 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 09c1478 Appendix II 1 II David and Martine Mednansky P.O.Eox 940 2 II Pine Valley, CA 91962 619-473-7648 3 4 _I_ 5 6 7 8 9 United Southern States District Court District of California 10 11 I 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 12 13 14 15 16 17 18 19 20 vs. William Metz, Owen Martin, Randy Moore, Ritu Ahuja, Marlene Finley, Donna Grosz Defendants, II Plaintiffs give notice of motion to amend plaintiffs' rights. in 21 II original 22 23 24 25 26 27 28 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 3 4 5 6 7 8 9 United Southern States District District Court of California 10 11 David 12 and Martine Plaintiffs, vs. Mednansky Case No.09CV1478 LAB (WVG) 13 14 15 16 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, 17 18 19 20 II Plaintiffs First Constitution, to request leave of court For: to file an amended of the United 21 22 23 24 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 25 26 27 Iidefendants IIAhuja, Owen C. Martin, federal Randy Moore, employees. Marlene and Donna Grosz, 28 1 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 4 to interfere II 3. Defendants 4. Defendants 5. Plaintiffs 6. Plaintiffs a responsive pleading. to dismiss. matters. 5 II 6 II 7 II a motion opposition to dismiss. to motion pleading seek to amend their to correct 8 IIallegations 9 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 10 II 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 28 the course For these 1 2 plaintiffs cognitive abilities have been interfered with and thus hampered in perfecting their complaint. by plaintiffs' amended to is to 30 3 4 9. Defendants pleadings because will not be prejudiced they have not filed a responsive and because the nature pleading 5 6 7 8 9 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 10 764 F.2d 381, 391-92 because (5th Cir. 1985). 11 12 not cause prejudice defendants have shown no interest in answering the the ENE the court suggested, complaint, vacation nor interest 13 14 15 16 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. 17 18 19 20 21 22 23 24 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 25 26 27 are filing their amended 28 3 1 2 II II 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, 3 II 4 II 5 II 6 II 7 II court to grant Respectfully Plaintiff the amended pleading. December 2, 2009 /~,-~~------Plaintiff Martine Mednansky 8 9 10 11 12 -~ -yj David Mednansky eC~ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 UNITED SOUTHERN STATES DISTRICT DISTRICT COURT OF CALIFORNIA 3 4 II DAVIDMEDNANSKet al., Y Plaintiffs, Case No.: 09CV1478 LAB (WVG) 5 DECLARATION F SERVICE O u.s. Attorney Person served: Southern District of California 6 II 7 vs. Metz et al., Defendants, IIWilliam Date: December 2, 2009 8 9 10 11 12 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 13 14 "Plaintiffs' IIComplaint Ilmail, with and memorandum in support by placing prepaid, to: and First postage Amended Complaint, 15 16 17 18 19 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 20 21 22 23 24 .Jim Jacksof) 25 26 27 6035 [.al{ Murray Blvd. La Mesa~ CA 91942-2506 28 1 2 UNITED SOUTHERN STATES DISTRICT DISTRICT COURT OF CALIFORNIA 3 4 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: 5 6 7 IIWilliam Metz et al., Defendants, 8 9 December 2, 2009 10 III, the undersigned declare under years penalty of perj ury that a party following to this I am action; 11 12 lIover the age of eighteen "that I served and not the above defendant, notice motion the documents: of Amended Uon . .S 13 IIPlaintiffs' and memorandum in support 14 15 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 II 16 17 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 18 19 20 21 22119~~~ 23 24 25 26 27 28

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