El et al v. O'Brien et al
Filing
8
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE AND GRANTING LEAVE TO AMEND - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, this action is dismissed without prejudice and Plaintiff is granted leave to amend her Complaint to the extent set forth in the Attached Written Memorandum and Order. Plaintiff must file any amended complaint NO LATER THAN JULY 20, 2012. If Plaintiff fails to file an amended complaint by July 20, 2012, judgment shall be entered dismissing the Compla int with prejudice. For Plaintiff's convenience, "Instructions on How to Amend a Complaint" are attached. Plaintiff must use the same docket number currently assigned to this case in any amended complaint. The court certifies pursuan t to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962).. The Clerk of the Court is directed to STAY closure of this case pending further order of the court and to mail a copy of this Electronic Order, the Attached Written Memorandum and Order and Instructions on How to Amend a Complaint to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 6/20/2012. (Attachments: # 1 Supplement) (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PRO SE OFFICE
U.S. COURTHOUSE
225 CADMAN PLAZA EAST
BROOKLYN, NEW YORK 11201
HOW TO AMEND YOUR COMPLAINT
Ifyou have forgotten to state an important matter in your complaint, you discover something
new after you filed your complaint, you want to add a defendant, or you want to insert the true name
ofa "John Doe" defendant, you may be able to file an amended complaint. An amended complaint
does not just add to the first complaint. Once you file an amended complaint it entirely replaces your
original complaint.
Amendments to a complaint are governed by Rule 15(a) of the Federal Rules of Civil
Procedure. Rule 15(a) provides that:
A party may amend the party's pleading once as a matter ofcourse at
any time before a responsive pleading is served or, ifthe pleading is
one to which no responsive pleading is permitted and the action has
not been placed upon the trial calendar, the party may so amend it at
any ,time within 20 days after it is served. 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. A party shall plead in response to an amended
pleading within the time remaining for response to the original
pleading or within 10 days after service of the amended pleading,
whichever period may be the longer, unless the court otherwise
orders.
This means that if the defendant has not yet filed an answer to your complaint, you can file
one amended complaint without permission of the Court. If the defendant has filed a motion to
dismiss but has not filed an answer, you are still entitled to file one amended complaint without
permission. (you are only permitted to file one amended complaint before defendant files an answer;
if you wish to file a second amended complaint before defendant files an answer, you must obtain
defendant's consent or you must obtain permission from the Court). However, ifthe defendant has
already filed his answer to your complaint, you must get written consent from the defendant or
permission ofthe Court before amending your complaint. Ifthe defendant agrees in writing that you
can file an amended complaint, you must ask the judge to write "So Ordered" on the written consent,
indicating that the judge has approved the consent. If the defendant does not give you written
consent, you can ask permission from the Court by filing a motion to amend the complaint and
including a copy ofthe proposed amended complaint with your motion papers. Instructions for
preparing a motion are attached and are available separately.
If you file an amended complaint. It must be captioned as an "Amended Complaint."
FILING AND SERVING THE AMENDED COMPLAINT
SERVICE OF THE AMENDED COMPLAINT BEFORE THE
ORIGINAL COMPLAINT HAS BEEN SERVED
If you decide to amend your complaint before defendant has been served with your original
complaint and summons, you should serve the amended complaint on defendant and file the original
amended complaint with the Pro Se Office as follows:
1.
Make copies of your amended complaint.
2.
Keep one copy for your own records.
3.
File the original of your amended complaint with the Pro Se Office.
4.
Ifyou have not added new defendants in your amended complaint, use the summons
that was originally issued by the Court.
5.
Have a ~ of the summons and a ~ of the amended complaint served on each
defendant by someone who is over eighteen and is not a party to the action. The
original summons with the seal of the court embossed on it must be returned to the
Court, so do not serve the original summons on any defendant.
6.
Have the person who serves the summons and amended complaint on each defendant
complete an affidavit or affirmation of service ofprocess form.
7.
Make a copy ofthe affidavit or affirmation of service ofprocess and keep it for your
own records.
8.
Attach the original affidavit or affirmation of service to the original summons.
9.
File the original summons and the affidavit or affirmation ofservice ofprocess with
the Pro Se Office.
SERVICE OF THE AMENDED COMPLAINT AFTER THE
ORIGINAL COMPLAINT HAS BEEN SERVED ON ALL DEFENDANTS
Ifyou decide to amend your complaint afterthe defendant has been properly served with your
original complaint and summons (and you have not added any new defendants in your amended
complaint), you should take the following steps:
1.
Make copies of your amended complaint. "
2
2.
Keep one copy for your own records.
3.
Send a copy of your amended complaint to the attorney for each defendant by
ordinary first-class mail.
4.
Complete an affidavit or affinnation of service of process fonn stating that the
amended complaint was mailed to each defendant.
5.
Make a copy ofthe affidavit or affirmation ofservice ofprocess and keep it for your
own records.
6.
File the original amended complaint and your original affidavit or affinnation of
service of process with the Pro Se Office.
DELIVERY OF THE AMENDED COMPLAINT AFTER THE ORIGINAL
COMPLAINT HAS BEEN SERVED ON SOME DEFENDANTS
BUT NOT ON OTHERS
If you decide to amend your complaint after some defendants have been served with your
original complaint and summons but before other defendants have been served (or you have added
new defendants in your amended complaint), you should take the following steps:
1.
Make copies of your amended complaint.
2.
Keep one copy for your own records.
3.
Send a copy of your amended complaint by ordinary first-class mail to each
defendant who has already been served.
4.
Complete an affidavit or affinnation of service of process fonn stating that the
amended complaint and summons was mailed to each defendant.
5.
Make a copy ofthe affidavit or affirmation ofservice ofprocess and keep it for your
own records.
6.
File the original amended complaint and original affidavit or affinnation of service
of process with the Pro Se Office.
7.
If you have not added new defendants in your amended complaint, you must serve
the amended complaint on the defendant who has not yet been properly served. If
you have added new defendants, the Court will issue an amended summons which
must be served with the amended complaint. Ifyou are adding defendants, you must
bring this to the attention of the Pro Se Writ Clerk.
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8.
Have a ~ ofthe amended summons and a £QnY ofthe amended complaint served
pursuant to Rule 4 of the Federal Rules on any defendant who was not previously
served with the original complaint.
9.
Have the person who served the amended summons and the amended complaint to
each ofthe new defendants complete an affidavit or affirmation ofservice ofprocess
form.
10.
Make a copy of the affidavit or affIrmation of service ofprocess.
II.
Attach the affidavit or affirmation of service of process to the amended summons.
12.
File the original amended summons and the original affidavit or affirmation of
service of process with the Pro Se Office.
Ifyou have questions regarding any ofthe procedures listed above, please contact the Pro Se
Office at 718-613-2665.
11/28/05
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Tara D. Hunter-Hicks
and
Ralph Vega, Jr.
Pro Se Writ Clerks
Attn: Pro Se Office
United States District Court
for the Eastern District of New
York
225 Cadman Plaza East
Brooklyn, NY 11201
8:30AM - 5:00PM
(718)613-2665
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