Thibodeau v. ADT Security Services

Filing 13

ORDER: Directing Plaintiff to File Complete Amended Complaint by December 12, 2016 (ECF 12 ); Denying as Moot 5 Defendant's Motion to Dismiss; and Vacating Hearing Date Set for January 13, 2017. If Plaintiff wishes to continue pursuing h is first ten causes of action, originally filed in state court, he must file a complete Amended Complaint with all nineteen causes of action no later than December 12, 2016. Signed by Judge Gonzalo P. Curiel on 11/29/16. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLAYTON DEL THIBODEAU, Pro Se,

Case No.: 3:16-cv-02680-GPC-AGS

Plaintiff,

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v.

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ORDER:

ADT SECURITY SERVICES, a/k/a/
ADT HOLDINGS, INC.,

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(1) DIRECTING PLAINTIFF TO
FILE COMPLETE AMENDED
COMPLAINT BY DECEMBER 12,
2016 [ECF No. 12];

Defendant.

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(2) DENYING AS MOOT
DEFENDANT’S MOTION TO
DISMISS [ECF No. 5]

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(3) VACATING HEARING DATE
SET FOR JANUARY 13, 2017

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On September 27, 2016, Plaintiff Clayton Del Thibodeau (“Plaintiff”), pro se, filed

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a Complaint against Defendant ADT LLC, d/b/a ADT Security Services (“Defendant”),

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in San Diego Superior Court. (Dkt. No. 1.) Defendant removed the case to this Court on

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October 28, 2016. (Id.) On November 4, 2016, Defendant filed a motion to dismiss

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Plaintiff’s Complaint. (Dkt. No. 5.) A hearing date on Defendant’s motion was

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scheduled for January 13, 2017.

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On November 28, 2016, Plaintiff filed, nunc pro tunc, a document entitled

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“Additional Causes of Action (No. Eleven through No. Nineteen) Amended to Existing
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3:16-cv-02680-GPC-AGS

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Complaint.” (Dkt. No. 12.) Courts “liberally construe pleadings by pro se litigants.”

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Aguasin v. Mukasey, 297 F. App’x 706, 707 (9th Cir. 2008). As such, the Court

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construes Plaintiff’s document as an Amended Complaint. Plaintiff filed this document

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within 24 days of service of Defendant’s motion to dismiss by mail, see Fed. R. Civ. P.

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5(b)(2)(C); 6(d), and can thus amend his Complaint as a matter of course, see

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15(a)(1)(B).

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However, the Court notes that Plaintiff’s Amended Complaint includes only his

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eleventh through nineteenth causes of action and omits the first ten causes of action in his

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original Complaint. (Dkt. No. 12 at 1.) Plaintiff is cautioned that the Amended

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Complaint must be complete by itself without reference to his original Complaint,

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comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-alleged will

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be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

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Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

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supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

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(noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”). If Plaintiff wishes to

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continue pursuing his first ten causes of action, originally filed in state court, he must file

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a complete Amended Complaint with all nineteen causes of action no later than

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December 12, 2016.

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Because Defendant’s motion to dismiss was based upon Plaintiff’s original

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Complaint, the Court DENIES AS MOOT Defendant’s motion to dismiss (Dkt. No. 5)

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and VACATES the hearing date set for January 13, 2017.

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IT IS SO ORDERED.
Dated: November 29, 2016

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3:16-cv-02680-GPC-AGS