Bernal v. United States Postal Service ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARBARA BERNAL, ) Case No.: 1:20-cv-0829 - AWI JLT ) 12 Plaintiff, ) ORDER WITHDRAWING THE FINDINGS AND ) RECOMMENDATIONS DATED 13 v. ) SEPTEMBER 1, 2020 AND GRANTING ) PLAINTIFF LEAVE TO AMEND THE SECOND 14 UNITED STATES POSTAL SERVICE, et al., ) AMENDED COMPLAINT 15 Defendants. ) ) 16 ) 17 Barbara Bernal is an employee of the United States Postal Service and asserts she has suffered 18 retaliation in violation of Title VII and intentional infliction of emotional distress in the course of her 19 employment. Previously, the Court recommended the Second Amended Complaint be dismissed 20 without leave to amend. (Doc. 8) Plaintiff filed objections to the recommendation on September 17, 21 2020, in which she identified additional facts for the first time and provided documentation to support 22 her claims. (Doc. 10) For example, Plaintiff alleged that her supervisor learned Plaintiff participated 23 in a grievance filed against the supervisor in a meeting held on the same date as the grievance was 24 filed. (Id.) Because the additional facts and documents support Plaintiff’s claim for retaliation and 25 were not previously identified, the Court will grant Plaintiff leave to amend her complaint. 26 Plaintiff is reminded that a complaint supersedes the original complaint. Forsyth v. Humana, 27 Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). In 28 addition, the amended complaint must be “complete in itself without reference to the prior or 1 superseded pleading.” Local Rule 220. Once Plaintiff files Third Amended Complaint, the prior 2 pleadings no longer serve any function in the case. Finally, Plaintiff is warned that “[a]ll causes of 3 action alleged in an original complaint which are not alleged in an amended complaint are waived.” 4 King, 814 F.2d at 567. Accordingly, the Court ORDERS: 5 1. The Findings and Recommendations dated September 1, 2020 (Doc. 8) are 6 WITHDRAWN; 7 2. Plaintiff is granted leave to file an amended complaint, incorporating the newly alleged 8 facts and information from the supportive documents; and 9 3. Plaintiff SHALL file a Third Amended Complaint no later than November 20, 2020. 10 11 IT IS SO ORDERED. 12 Dated: October 24, 2020 /s/ Jennifer L. Thurston 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28