McDaniel v. Diaz ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID MCDANIEL, Case No. 1:20-cv-00856-NONE-SAB 11 Plaintiff, ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR LEAVE TO 12 v. AMEND AND VACATING OCTOBER 7, 2020 HEARING 13 RALPH DIAZ, et al., (ECF No. 15) 14 Defendants. 15 16 Plaintiff filed this action on June 22, 2020, against Defendants Ralph Diaz, Jeff Dirske, 17 the California Department of Correction and Rehabilitation, and the Stanislaus County Sheriff’s 18 Department (“Defendants”). (ECF No. 1.) On August 21, 2020, Defendant Jeff Dirske 19 (“Dirske”) filed a motion to dismiss, set for hearing before the undersigned on September 30, 20 2020. (ECF No. 10.) On August 24, 2020, the Court continued the scheduling conference in this 21 matter until January 12, 2021. (ECF No. 11.) On August 25, 2020, pursuant to the parties’ 22 stipulation, the Court extended the time for Defendant Ralph Diaz to file a responsive pleading 23 until September 28, 2020. (ECF No. 13.) 24 On September 4, 2020, Plaintiff filed a motion to amend the complaint with a hearing on 25 the motion set before the undersigned for October 7, 2020. (ECF No. 15.) On September 4, 26 2020, Plaintiff also filed an ex parte motion for an extension of time to respond to Defendant 27 Dirske’s motion to dismiss. (ECF No. 16.) Plaintiff’s ex parte motion requests an extension of time because Plaintiff’s opposition to Defendant Dirske’s motion to dismiss is currently due on 1 September 16, 2020, and the filing of an amended complaint would render Defendant Dirske’s 2 motion to dismiss moot. (Id.) 3 Neither Plaintiff’s motion to amend nor ex parte motion clearly indicated whether 4 Defendant opposed the filing of an amended complaint. However, as stated in the Court’s 5 previous order dated September 9, 2020 (ECF No. 17), given the current posture of the case, it 6 appears Plaintiff could have filed an amended complaint as a matter of course and without leave 7 of court. See Fed. R. Civ. P. 15(a)(1)(B). However, given the Court only had a pending motion 8 for leave to amend before it, the Court ordered Defendants to file a statement of non-opposition 9 or statement of intent to oppose Plaintiff’s motion for leave to amend. (ECF No. 17.) On 10 September 10, 2020, Defendant Dirske, and Defendant Ralph Diaz filed statements of non- 11 opposition. (ECF Nos. 18, 19.) 12 As acknowledged in Defendant Ralph Diaz’s statement of non-opposition, it appears the 13 Court is correct that Plaintiff has until September 11, 2020, to file an amended complaint as a 14 matter of course based on the date of the filing of the motion to dismiss, and no leave of court is 15 necessary. (ECF No. 18.) Given the September 11, 2020 deadline is today, to the extent 16 necessary and to avoid unnecessary further filings if Plaintiff does not file an amended complaint 17 as a matter of course by September 11, 2020, the Court grants leave to file an amended 18 complaint within three (3) days of entry of this order. Fed. R. Civ. P. 15(a)(2) (“In all other 19 cases, a party may amend its pleading only with the opposing party’s written consent or the 20 court’s leave. The court should freely give leave when justice so requires.”). 21 As an additional consideration to avoid unnecessary court orders, upon the filing of the 22 amended complaint, Defendant Dirske is encouraged to consider withdrawing the pending 23 motion to dismiss as moot, and then if withdrawn, Plaintiff should consider withdrawing the ex 24 parte application for an extension of time to file an opposition to the motion to dismiss. See 25 Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 216CV00291KJMKJN, 2016 WL 9244210, 26 at *1 (E.D. Cal. Apr. 26, 2016) (denying motion to dismiss as moot after an amended complaint 27 was filed as a matter of course within 21 days after the filing of the motion to dismiss, because INM INE VPA MMU IO ee AY VV 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion for leave to amend (ECF No. 15) is GRANTED; 3 2. The hearing set for October 7, 2020, in Courtroom 9, is VACATED; and 4 3. Plaintiff shall file an amended complaint within three (3) days of entry of this 5 order. 6 7 IT IS SO ORDERED. FA. Se g Dated: _ September 11, 2020 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28