Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 121

ORDER striking Plaintiff's Third Amended Complaint (ECF 118 ). Signed by Magistrate Judge Andrew G. Schopler on 4/28/2021.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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John Henry YABLONSKY,

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Case No.: 18-cv-1122-AGS
ORDER STRIKING PLAINTIFF’S
THIRD AMENDED COMPLAINT
(ECF 118)

Plaintiff,

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v.

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CALIFORNIA DEPARTMENT OF

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CORRECTIONS & REHABILITATION,

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et al.,

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Defendants.

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On March 22, 2021, plaintiff Yablonsky moved for leave to “extend the deadline for

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amending [the pleadings].” (ECF 109, at 1.) The Court granted the request. (ECF 116, at 2.)

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But instead of moving to amend, plaintiff filed a Third Amended Complaint. (ECF 118.)

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Yablonsky’s filing was improper. In the April 19, 2021 order, the Court granted

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plaintiff’s request to amend the scheduling order under Fed. R. Civ. P. 16(b). (ECF 116,

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at 2.) But Yablonsky did not request—and the Court did not grant—leave to amend the

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pleadings under Fed. R. Civ. P. 15(a). See Fed. R. Civ. P. 15(a)(2) (“[A] party may amend

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its pleading only with the opposing party’s written consent or the court’s leave.”); see also

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) (“[A] party

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seeking to amend pleading after [the] date specified in [the] scheduling order must first

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show ‘good cause’ for amendment under Rule 16(b)[;] then, if ‘good cause’ be shown, the

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party must demonstrate that amendment was proper under Rule 15.”). Here, the Court left

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the Rule 15 prejudice analysis “for any future motion to amend” and specifically “[took]

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no position at [the] time on whether any . . . reason justifies granting leave to amend here.”

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(ECF 116, at 2; id. at 2 n.1); see also Moore v. Kayport Package Exp., Inc., 885 F.2d 531,

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538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) (setting forth factors

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to consider in deciding whether to grant leave to amend).

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18-cv-1122-AGS

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Because the Court did not grant leave to amend the pleadings under Rule 15, the

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Court strikes plaintiff’s Third Amended Complaint. The deadline for plaintiff to file any

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motion to amend is still May 17, 2021.

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Dated: April 28, 2021

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18-cv-1122-AGS