(PS) Jordan v. Provins ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JORDAN No. 2:23-cv-00287-DJC-CKD (PS) 12 Plaintiff, ORDER 13 v. 14 MATTHEW PROVINS, 15 Defendant. 16 17 18 Plaintiff, Joshua Jordan, appearing pro se, filed this fee paid complaint against defendant, 19 Matthew Provins, on February 16, 2023. (ECF No. 1.) On May 1, 2023, defendant filed a 20 motion to dismiss for failure to state a claim, motion to strike, and motion for a more definite 21 statement and set a hearing date for June 7, 2023. (ECF Nos. 15, 10, 16.) On May 15, 2023, 22 plaintiff filed a motion for electronic filing authorization. (ECF No. 20.) Plaintiff also filed a 23 motion for leave to amend but did not file an amended complaint or proposed amended 24 complaint. (ECF No. 18.) 25 I. Motion for Electronic Filing Authorization, ECF No. 201 26 Generally, “any person appearing pro se may not utilize electronic filing except with the 27 1 Plaintiff’s first motion to participate in electronic case filing, ECF No. 6, was denied for failure 28 to show good cause. (ECF No. 8.) 1 permission of the assigned Judge or Magistrate Judge.” See E.D. Cal. L.R. 133(b)(2). 2 In his motion for electronic filing authorization, plaintiff indicates that he has the required 3 software to participate in ECF and asserts a willingness to familiarize himself with relevant rules 4 and procedures. (ECF No. 20 at 1-2.) However, the motion does not state any good cause 5 reasons for participating in electronic filing and thus does not establish good cause for a deviation 6 from the Local Rule applicable to unrepresented litigants. Accordingly, plaintiff’s motion to 7 participate in electronic case filing is DENIED. 8 II. Plaintiff’s Motion to Amend Complaint, ECF No. 18 9 Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading within 21 10 days after service of a motion under Rule 12(b) as a matter of course. Here, plaintiff was served 11 with defendant’s Rule 12(b) motion on May 2, 2023, and therefore could have amended his 12 complaint without seeking leave from the court on or before May 23, 2023. (See ECF No. 17, 13 Certificate of Service.) Plaintiff did not file any amended complaint or proposed amended 14 complaint and the deadline for plaintiff to file an amended complaint without seeking leave from 15 the court has passed. 16 In Foman v. Davis, the Supreme Court held that leave to amend should be freely granted 17 absent “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 18 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 19 virtue of allowance of the amendment, futility of amendment.” 371 U.S. 178, 182 (1962). In the 20 Ninth Circuit, courts liberally grant pro se plaintiffs leave to amend, as it is generally presumed 21 that pro se plaintiffs are unskilled in the law and are more prone to pleading errors than those 22 litigants who are represented by counsel. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). 23 This policy aligns with Rule 15’s underlying purpose of facilitating decisions on the merits, rather 24 than on technicalities. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (internal quotation 25 marks omitted). 26 Here, there is no indication that allowing plaintiff to amend the complaint would implicate 27 any of the Foman factors. Accordingly, and considering plaintiff’s pro se status, the court 28 GRANTS plaintiff leave to amend the complaint. Plaintiff shall file an amended complaint 1 || within 28 days of this order. 2 Defendant’s motion to dismiss (ECF No. 15), motion to strike (ECF No. 10), and motion 3 || for a more definite statement (ECF No. 16) are DENIED as moot. The hearing scheduled for 4 | June 7, 2023 is hereby VACATED. 5 ORDER 6 It is HEREBY ORDERED that: 7 1. Plaintiff's motion to participate in electronic filing (ECF No. 20), is DENIED; 8 2. Plaintiff's motion to amend complaint (ECF No. 18), is GRANTED. Plaintiff shall 9 file an amended complaint within 28 days of this order; 10 3. Defendant’s motion to dismiss (ECF No. 15), motion to strike (ECF No. 10), and 11 motion for a more definite statement (ECF No. 16) are DENIED as moot; and 12 4. The hearing scheduled for June 7, 2023 is hereby VACATED. 13 | Dated: May 25, 2023 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 || 21, jord.287 17 18 19 20 21 22 23 24 25 26 27 28