Watkins v. Westin ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL W. WATKINS, Case No. 1:21-cv-01348-NONE-SAB 12 Plaintiff, ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED 13 v. COMPLAINT 14 WILLIAM WESTIN, et al., (ECF Nos. 25, 26, 27) 15 Defendants. 16 17 18 19 Michael Watkins (“Plaintiff”), proceeding in this matter pro se, initiated this action on 20 April 30, 2021, in the United States District Court for the Eastern District of Tennessee in 21 Knoxville. (ECF No. 1.) On July 28, 2021, Defendants William Westin, Edward Miliam and Joe 22 Banuelos moved to dismiss for lack of personal jurisdiction and improper venue pursuant to 23 Federal Rules of Civil Procedure 12(b)(2) and (3). (ECF No. 11.) On August 26, 2021, the 24 Tennessee Court granted Defendants’ motion and the case was subsequently transferred to the 25 Eastern District of California on September 9, 2021. (ECF Nos. 14, 15, 16.) 26 On September 29, 2021, Plaintiff filed a “first amended complaint.” (ECF No. 25.) The 27 amended complaint seeks to add Maryann Watkins, also proceeding pro se, as a Plaintiff, and the 28 State of California as a Defendant. The caption of the filing indicates it is an amended complaint 1 filed “as a matter of course” pursuant to Federal Rule of Civil Procedure 15. (Id. at 1.)1 On 2 October 8, 2021, noting the time to file an amended complaint “as a matter of course” under Rule 3 15(a)(1) had expired,2 the Court construed the filing as a motion for leave to amend, and ordered 4 Defendants to file a response to the September 29, 2021 filing within seven (7) days. (ECF No. 5 26.) 6 On October 11, 2021, Defendants William Westin, Edward Miliam and Joe Banuelos filed 7 a motion to dismiss the first amended complaint. (ECF No. 27.) The filing indicates that as for a 8 response to the Court’s October 8, 2021 order, “Defendants do not oppose the filing of Mr. 9 Watkin’s First Amended Complaint because it does not cure any of the deficiencies, which are 10 raised through the instant Motion to Dismiss, contained in the original complaint.” (ECF No. 27 11 at 9 n.1.) The filing acknowledges that the first amended complaint contains a new plaintiff and a 12 new defendant, however notes “[a]t the time of preparing the instant motion, newly added 13 Plaintiff Maryann Watkins has not personally served her summons and complaint upon 14 defendants, and Plaintiff Michael W. Watkins has not served newly named defendant “State of 15 California.” (ECF No. 27 at 11.) The filing again reiterates that Defendants do not object to the 16 first amended complaint being deemed the operative pleading in this action as the motion to 17 dismiss is applicable to either the original complaint or first amended complaint. (ECF No. 27 at 18 11 n.2.) As such, the Court accepts the filing as both a statement of non-opposition to Plaintiff’s 19 motion to amend, and a motion to dismiss the amended complaint. 20 / / / 21 / / / 22 1 Rule 15 provides that a party may amend the party’s pleading once as a matter of course within twenty-one days of 23 serving it or within twenty-one days after service of a responsive pleading or twenty-one days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend 24 only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 25 2 In this action, Defendants filed a motion to dismiss on July 28, 2021. (ECF No. 11.) The proof of service indicates the motion was served on Plaintiff the same day. (ECF No. 11-1 at 3.) Therefore, Plaintiff was permitted to amend 26 his complaint once “as a matter of course” within twenty-one days after service of that motion. Fed. R. Civ. P. 15(a)(1)(B)); see also Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (finding plaintiff had 27 right under Rule 15(a)(1)(B) to amend once within twenty-one days after service of defendants’ motion to dismiss under Rules 12(b)(6) and 12(e)). Thus, any amended complaint filed as a matter of course under Rule 15(a)(1) was 28 required to be filed by August 18, 2021. ene nn eee IEE I III IEEE EES IRIE ISIE IIE EO OE 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's September 29, 2021 filing (ECF No. 25), construed as a motion for 3 leave to amend, is GRANTED as unopposed; and 4 2. This action shall proceed on Plaintiff's first amended complaint filed September 5 29, 2021 (ECF No. 25).? 6 7 IT IS SO ORDERED. DAA (e_ g | Dated: _October 13,2021 _ ef 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 The Court makes no other findings or order concerning the motion to dismiss filed October 11, 2021, by 27 || Defendants William Westin, Edward Miliam and Joe Banuelos (ECF No. 27), nor the fact the first amended complaint seeks to add additional parties, and the motion to dismiss will be addressed by separate order by the 28 | District Judge.