Lu v. University of Utah
Filing
11
MEMORANDUM DECISION: Plaintiff is granted leave to have complaint received on 9/22/14 docketed as a second amended complaint; Plaintiff is to mail summons to the Clerk of Court for the following Defendants: (1) the University of Utah, and (2) Robert Baldwin by 11/28/14; Plaintiff is to file proof of service of the summons and second amended complaint on all Defendants identified in the second amended complaint by 12/19/14. Signed by Magistrate Judge Dustin B. Pead on 10/1/14 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
YUNG-KAI LU,
Plaintiff,
MEMORANDUM DECISION
Case No. 2:13-cv-00984-TC-DBP
v.
District Judge Tena Campbell
UNIVERSITY OF UTAH, et al.,
Magistrate Judge Dustin B. Pead
Defendants.
I.
INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Docket No. 5.) Pro
se Plaintiff, who proceeds in forma pauperis, is Yung-Kai Lu. On October 28, 2013, Plaintiff
filed his original complaint with the Court. (Dkt. No. 3.) On April 18, 2014, this Court ordered
Plaintiff to amend his complaint to comply with Fed. R. Civ. P. 8 and DUCivR 3-5. (Dkt. No.
7.) On June 25, 2014, Plaintiff emailed an unsigned copy of his first amended complaint to the
Court. (Dkt. No. 9.) Plaintiff was instructed to mail a hard copy of his first amended complaint
as well.
II.
LEAVE TO FILE SECOND AMENDED COMPLAINT
On approximately September 23, 2014, the Clerk of Court received a hard copy of a
complaint from Plaintiff. However, it does not match the emailed complaint at Docket No. 9.
The hard copy complaint identifies different Defendants and new claims.
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The Court interprets Plaintiff’s new filing as a second amended complaint. The Court also
liberally construes it as a motion for leave to file a second amended complaint. The proposed
complaint does not fundamentally differ from the emailed complaint at Docket No. 9. Given this
situation and Plaintiff’s pro se status, the Court GRANTS Plaintiff leave to file his second
amended complaint.
III.
SERVICE OF SECOND AMENDED COMPLAINT
With his original complaint, Plaintiff mailed the Clerk of Court summons for the following
individuals: (1) Lori McDonald; (2) Donn Schaefer; (3) George Marie; (4) Chalimar Swain; (5)
Charles A. Wight; (6) Charles Piele; and (7) Miguel Chaqui. Plaintiff arranged for his server to
pick up these summons from the Clerk of Court and to serve the summons on these individuals.
The Clerk of Court still has the summons for these seven individuals. All these individuals
except for George Marie are named as Defendants in Plaintiff’s second amended complaint.
However, Plaintiff never mailed summons for the following Defendants named in Plaintiff’s
second amended complaint: (1) the University of Utah, and (2) Robert Baldwin. To arrange for
complete service of the summons and second amended complaint, the Court ORDERS Plaintiff
to mail the Clerk of Court summons for these two Defendants.
IV.
ORDERS
The Court GRANTS Plaintiff leave to file a second amended complaint. The Court instructs
the Clerk of Court to docket the complaint Plaintiff mailed on approximately September 23,
2014 as his second amended complaint.
The Court ORDERS Plaintiff to mail summons to the Clerk of Court for the following
Defendants: (1) the University of Utah, and (2) Robert Baldwin. Plaintiff must mail these
summons to the Clerk of Court by November 28, 2014. Once the Clerk of Court receives these
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summons, it will contact Plaintiff’s server to pick up the second amended complaint, these new
summons, and the previously mailed summons.
The Court ORDERS Plaintiff to file proof of service of the summons and second amended
complaint on all Defendants identified in Plaintiff’s second amended complaint by December
19, 2014. 1 If Plaintiff fails to file proof of service by December 19, 2014, this Court will
recommend dismissing Plaintiff’s second amended complaint for failure to prosecute.
Dated this 1st day of October, 2014.
By the Court:
Dustin B. Pead
United States Magistrate Judge
1
This service will not include George Marie because he was not identified as a Defendant in
Plaintiff’s second amended complaint.
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