Alexander v. Johnson

Filing 5

ORDER Granting 4 Motion for Leave to File Amended Petition. Signed by Magistrate Judge William McCurine, Jr on 7/26/2012. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTINA L. ALEXANDER,

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Civil No.
Petitioner,

ORDER RE: MOTION FOR LEAVE
TO FILE AMENDED PETITION

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v.

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D.K. JOHNSON, Warden,

I.

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[ECF No. 4]

Respondent.

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12cv1401 BEN (WMc)

INTRODUCTION AND PROCEDURAL HISTORY
On July 16, 2012, the Honorable Roger T. Benitez directed the Clerk of Court to refile a

duplicative Petition for Writ of Habeas Corpus in Case. No. 12cv1402 in the instant case “as an original
Motion to Amend the Petition.” [ECF No. 4 at p. 1.] Petitioner’s filing in Case. No. 12cv1402
challenged the same state court conviction as the Petition in the instant case. Id. As directed by Judge
Benitez, the Court construes the filing in Case No. 12cv1402 as a motion to amend the pending petition.
[Id. at p. 2.]
II.

STANDARD
Federal Rule of Civil Procedure 15(a) provides that a party may amend its complaint once “as

a matter of course” before a responsive pleading is served, or at any time within twenty days of service
if it requires no response. “Otherwise a party may amend the party’s pleading only by leave of court
or by written consent of the adverse party; and leave shall be freely given when justice so requires.”
Fed. R. Civ. P. 15 (a).

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This Court notes that on several occasions, “the Supreme Court has instructed the lower federal

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courts to heed carefully the command of Rule 15(a), F[ed]. R. Civ. P., by freely granting leave to amend

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when justice so requires.” DCD Programs, LTD. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1995) (quoting

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Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986)) (quoting Howey v. United

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States, 481 F.2d 1187, 1190 (9th Cir. 1973)) (citations omitted). “Rule 15's policy of favoring

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amendments to pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d

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977, 979 (9th Cir. 1981) (citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d 406 (9th Cir. 1960) (per

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curiam)).

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III.

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DISCUSSION AND ORDER THEREON
No responsive pleading has been served in the instant matter. Fed. R. Civ. P. 15 (a).

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Accordingly, the Court GRANTS the motion to amend and accepts Document No. 4 on the docket as

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Plaintiff’s First Amended Petition in this action. The Clerk of Court is DIRECTED to identify the

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filing at Document No. 4 in the Case Management / Electronic Case Filing system as the First Amended

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Petition for Writ of Habeas Corpus.

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IT IS SO ORDERED.
DATED: July 26, 2012

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Hon. William McCurine, Jr.
U.S. Magistrate Judge
United States District Court

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