Gelber v. City of Willits ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CRAIG ANTHONY GELBER, Case No. 3:23-cv-00681-JSC 8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. TO FILE A THIRD AMENDED COMPLAINT 10 CITY OF WILLITS, et al., Re: Dkt. No. 45 Defendants. 11 12 Craig Anthony Gelber, who is representing himself, brings this lawsuit against the City of 13 Willits, the City of Willits Water Department, and several individual defendants for disconnecting his 14 water utility service while he was pursuing an adverse possession claim on a property. On October 23, 15 2023, the Court granted Defendants’ motion to dismiss and granted Plaintiff leave to file an amended 16 complaint. (Dkt. No. 42.) Plaintiff thereafter filed his second amended complaint which Defendants 17 have again moved to dismiss. (Dkt. Nos. 43, 44.) The day after Defendants filed their motion to 18 dismiss, Plaintiff filed the now pending motion for leave to file a third amended complaint. (Dkt. No. 19 45.) Plaintiff contends his second amended complaint contains a “myriad of errors and omissions” 20 because he ran out of time and he seeks leave to file a cleaned up version of his complaint and to add a 21 declaratory relief claim to his fourth claim for relief. (Dkt. No. 45 at 2.) Having considered 22 Plaintiff’s filing, and in light of his unrepresented status, the Court concludes further briefing and 23 oral argument are unnecessary, see Civ. L.R. 7-1(b), and GRANTS Plaintiff’s motion. 24 “In general, a court should liberally allow a party to amend its pleading.” Sonoma Cnty. Ass'n 25 of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Fed. R. Civ. P. 15(a)). 26 “Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad faith 27 1 previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, 2 [or] futility of amendment, etc.’” /d. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Leave to 3 amend is warranted here especially given the non-substantive nature of the amendments as a whole. 4 However, to avoid prejudice to Defendants who just filed their motion to dismiss, the Court will treat 5 their previously filed motion to dismiss as a motion to dismiss the third amended complaint. 6 Defendants may raise any new issues regarding the third amended complaint in their reply brief. 7 Accordingly, the Court RESETS the briefing schedule on the motion to dismiss as follows: 8 Plaintiff's opposition brief is due January 4, 2024 and Defendants’ reply is due January 18, 2024. 9 The hearing is reset for February 8, 2024 at 9:00 a.m. via Zoom video. 10 Plaintiff shall file the third amended complaint by December 5, 2023. 11 12 IT IS SO ORDERED. 5 13 Dated: December 1, 2023 15 ACWUELINE SCOTT CORLE = 16 United States District Judge 18 19 20 21 22 23 24 25 26 27 28