(PS) Nelson Rogers v. Enjalran ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARY A. NELSON ROGERS, No. 2:19-cv-01564-TLN-CKD (PS) 12 Plaintiff, 13 v. ORDER 14 PAUL J. ENJALRAN, et al., (ECF No. 21) 15 Defendants. 16 17 Presently pending before the court is plaintiff’s second motion to amend her complaint. 18 (ECF No. 21.)1 For the reasons set forth below, the court grants plaintiff’s motion. 19 Plaintiff’s First Amended Complaint only named two defendants, Paul Enjalran and 20 Kamal Kaur, omitting several defendants named in the original complaint. (Compare ECF No. 1 21 at 2-7 with ECF No. 18 at 2-4.) On December 17, 2019, the court granted plaintiff’s motion to 22 amend her complaint as a matter of course pursuant to Federal Rule of Civil Procedure 15. (ECF 23 No. 19.) The court additionally instructed plaintiff that her “amendment as a matter of course 24 renders [her] original complaint non-existent” (ECF No. 19), and ordered plaintiff to file a 25 response explaining why the court should not dismiss, pursuant to Federal Rule of Civil 26 Procedure 41, defendants that plaintiff named in the original complaint but not in the amended 27 1 Plaintiff’s motion is entitled “motion . . . to file related action and to add defendants.” The court 28 treats plaintiff’s motion as one to file a Second Amended Complaint to add defendants. 1 complaint. (Id.) 2 Plaintiff’s present motion seeks to add the formerly-named defendants as well as Marcie 3 Frost and Tim Behrens. (ECF No. 21 at 2.) It appears that plaintiff did not name these 4 individuals in her First Amended Complaint because she alleges they cannot be liable under 5 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in 6 contrast to the defendants she did name in her First Amended Complaint. (ECF No. 21-1.) 7 Presumably, plaintiff is requesting the court to refer back to the prior complaint to keep the causes 8 of action against the unnamed defendants alive. However, “a plaintiff waives all causes of action 9 alleged in the original complaint which are not alleged in the amended complaint.” London v. 10 Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981). 11 In the interest of justice, and to allow plaintiff’s claims to be heard on the merits, the court 12 grants plaintiff’s motion to file a Second Amended Complaint. See Fed. R. Civ. P. 15(a)(2). 13 Plaintiff is again cautioned that her Second Amended Complaint will render her former complaint 14 non-existent, and “Defendants not named or served and all claims not re-alleged in the [Second] 15 Amended Complaint will be deemed to have been waived.” Lewis v. Mitchell, 416 F. Supp. 2d 16 935, 947 (S.D. Cal. 2005) citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). 17 Additionally, for sake of clarity, the hearing on defendant Paul Enjalran’s motion to 18 dismiss (ECF No. 20) will remain set for January 22, 2020. Even though Enjalran’s motion 19 addresses the First Amended Complaint, the court finds that judicial economy, potential delay, 20 and potential prejudice to Enjalran weigh in favor of allowing his motion to proceed. If any 21 material change in plaintiff’s allegations against Enjalran appear in her Second Amended 22 Complaint, the parties can address them at the hearing. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion to file and amended complaint (ECF No. 21) is GRANTED; 25 2. Plaintiff’s new complaint shall be entitled “Second Amended Complaint” and be filed 26 by January 15, 2020; and 27 ///// 28 ///// 1 3. Plaintiff's Second Amended Complaint shall include all defendants and claims she 2 seeks to allege in this action, as outlined above. 3 IT IS SO ORDERED 4 | Dated: December 31, 2019 4 Hf / /, CAN fu fl. ay > CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 16. roge. 1564 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28