Laera v. Fang

Filing 12

ORDER Denying without prejudice 11 Motion for Order to Show Cause. Amended Complaint due 8/8/2014. Signed by Magistrate Judge Nancy J. Koppe on 7/9/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VITO ANTONIO LAERA,
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Plaintiff(s),
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vs.
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CAI JUN FANG,
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Defendant(s).
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Case No. 2:14-cv-00667-JAD-NJK
ORDER DENYING WITHOUT
PREJUDICE MOTION FOR ORDER
TO SHOW CAUSE
(Docket No. 11)

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Plaintiff is proceeding in this action pro se. On May 1, 2014, Plaintiff filed a complaint asserting

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ten causes of action against Defendant. See Docket No. 1. Also on May 1, 2014, Plaintiff filed a proof

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of service showing personal service on Defendant. See Docket No. 4. On May 28, 2014, Plaintiff

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moved for entry of default and the Clerk thereupon entered default. See Docket Nos. 7, 8. On May 30,

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2014, Plaintiff filed a motion for entry of default judgment. Docket No. 9.

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Pending before the Court is Plaintiff’s motion for an order to show cause, filed on June 11, 2014,

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which the Court construes as a motion to amend the Complaint to add four new causes of action. See

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Docket No. 11. As Defendant has not responded to the initial Complaint, however, leave from the Court

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to amend the pleadings is not required. See Fed. R. Civ. P. 15(a)(1)(B). Accordingly, to the extent

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Plaintiff wishes to add new claims in this case, he may do so by filing an Amended Complaint. If

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Plaintiff chooses to amend the Complaint, Plaintiff is informed that the Court cannot refer to a prior

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pleading (i.e., his original Complaint) in order to make the Amended Complaint complete. This is

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because, as a general rule, an Amended Complaint supersedes the original Complaint. See Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir. 1967). Local Rule 15-1 requires that an Amended Complaint be complete in

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itself without reference to any prior pleading. Once a plaintiff files an Amended Complaint, the original

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Complaint no longer serves any function in the case. Therefore, in an Amended Complaint, as in an

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original Complaint, each claim must be sufficiently alleged.

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Plaintiff should be aware that any Amended Complaint must be properly served on the

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Defendant. See Fed. R. Civ. P. 5(a)(2) (“a pleading that asserts a new claim for relief against [a party

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in default] must be served on that party under Rule 4”).

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Lastly, Plaintiff should also be aware that the filing of an Amended Complaint will moot the

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pending motion for default judgment, as well as the default already entered by the Clerk, given that an

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Amended Complaint would add new causes of action. See Chilko v. Lorren, 2008 WL 4468995, *2

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(E.D. Cal. Sept. 30, 2008) (vacating default and deeming withdrawn motion for default judgment in light

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of amended complaint).

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Accordingly the motion for an order to show cause is hereby DENIED without prejudice. To

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the extent Plaintiff wishes to amend his Complaint, he must do so in compliance with the above

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instructions. In particular, he must file a complete Amended Complaint, properly serve that Amended

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Complaint on Defendant, and begin anew the process of obtaining default judgment. Any Amended

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Complaint must be filed no later than August 8, 2014. In the event Plaintiff does not to file an Amended

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Complaint by August 8, 2014, the Court will proceed with the case based on his original Complaint.

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IT IS SO ORDERED.

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DATED: July 9, 2014

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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