(PS) Grant v. Martinez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK A. GRANT, Case No. 2:20-cv-01963-TLN-JDP (PS) 12 Plaintiff, ORDER CONSTRUING PLAINTIFF’S FILING AS A MOTION TO AMEND HIS 13 v. COMPLAINT AND GRANTING THE MOTION 14 LUIS MARTINEZ, et al., ECF No. 34 15 Defendants. ORDER DISMISSING DEFENDANTS’ 16 MOTION TO DISMISS WITHOUT PREJUDICE 17 ECF No. 26 18 ORDER DENYING DEFENDANTS’ 19 MOTION TO STRIKE AS MOOT 20 ECF No. 31 21 22 Plaintiff filed a document in response to defendants’ motion to dismiss that, among other 23 things, requested leave to amend the operative complaint so that he can supplement allegations 24 relating to his claim under the Federal Tort Claims Act. ECF No. 34 at 2. Plaintiff also filed a 25 third amended complaint. ECF No. 35. Leave to amend is “freely give[n] when justice so 26 requires.” Fed. R. Civ. P. 15(a)(2). I am aware of the fact that this case has been pending for 27 almost a year and that further amendment will require further briefing from defendants, who have 28 1 | already prepared two motions to dismiss. See Fed. R. Civ. P. 1 (Cases should be administered “to 2 || secure the just, speedy, and inexpensive determination of every action.”). Rule 15 should not be 3 | used as a tactic to delay the court from reaching the merits of defendants’ motion to dismiss. 4 | However, given the liberal standard under Rule 15 and plaintiff's need to supplement his 5 | allegations, I will grant leave to amend. Further leave in this case will be disfavored except to 6 | name Doe defendants once their identities are ascertained. 7 Defendants have filed a motion to dismiss. ECF No. 26. Defendants argue that the 8 | complaint does not plead sufficiently detailed or specific factual allegations and is, therefore, 9 | defective for failing to articulate a plausible claim and establish jurisdiction. See Ashcroft v. 10 | Igbal, 556 U.S. 662 (2009). Plaintiff has now filed an amended complaint. ECF No. 35. 11 | Without expressing any view as to its merits, the court dismisses defendants’ motion to dismiss 12 | without prejudice. Defendants are directed either to answer the new complaint or to file a new 13 | motion as appropriate. 14 Defendants move to strike plaintiff's unauthorized surreply to their motion to dismiss. 15 | ECF No. 31. This matter is now moot. 16 Accordingly: 17 1. Plaintiffs filing, ECF No. 34, is construed as a motion for leave to amend his 18 | complaint and granted. 19 2. Defendants’ motion to dismiss, ECF No. 26, is dismissed without prejudice. 20 3. Defendants’ motion to strike, ECF No. 31, is denied as moot. 21 IT IS SO ORDERED. 23 ( 1 Oy — Dated: _ September 1, 2021 Q_-——_ 24 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28