Edrosa v. Chau ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BERNARDO EDROSA, Case No.: 19cv88-CAB-MDD 12 Plaintiff, ORDER REGARDING REQUEST 13 v. FOR PLAINTIFF TO BE ABLE TO FILE HIS REQUESTED AMENDED 14 DR., JOHN K. CHU, COMPLAINT [Doc. No. 27] 15 Defendant. 16 17 On January 12, 2019, Plaintiff Bernardo Edrosa (“Plaintiff”), formerly incarcerated 18 at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and 19 proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. §1983. [Doc. No. 20 1.] On April 29, 2019, Defendants J. Chau, California Department of Corrections and 21 Rehabilitation, erroneously sued as Richard J. Donavan Correctional Facility, G. Casian, 22 P. Jayasundara, and F. Sedighi (“Defendants”) filed a motion to dismiss the complaint 23 pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 11.] On July 2, 2019, 24 Plaintiff filed a motion for leave to file amended complaint and request for 90 day 25 extension. [Doc. No. 16.] On July 5, 2019, this Court granted Plaintiff’s motion for 26 leave to file amended complaint and gave Plaintiff until September 9, 2019 to file a First 27 Amended Complaint (“FAC”). [Doc. No. 18.] Plaintiff was warned that failure to file 28 1 the FAC by September 9, 2019 would result in a dismissal of the case without further 2 court order. Therefore, as of September 9, 2019, this case has been dismissed. 3 On September 18, 2019, Plaintiff filed a motion for extension of time requesting 4 further time to file an opposition to the motion to dismiss. [Doc. No. 19.] However, 5 when the Court granted Plaintiff’s motion to amend the complaint on July 5, 2019, the 6 motion to dismiss became moot. Therefore, given there is no pending motion to dismiss, 7 the motion for extension of time was denied as moot. [Doc. No. 20.] 8 On October 23, 2019, Plaintiff filed a motion for reconsideration of the motion for 9 extension of time to file an opposition to the motion to dismiss. [Doc. No. 22.] The 10 Court again explained to Plaintiff that there was no pending motion to dismiss, and 11 denied the motion for reconsideration. [Doc. No. 23.] 12 On November 15, 2019, Plaintiff filed a Motion Requesting that the Court Forward 13 a Copy of the Defendants Dispositive Motion so that the Plaintiff May Respond in 14 Accord with Fed. R. Civ. P. §60(b). [Doc. No. 23.] Given that, at the time the case was 15 closed, there was no pending dispositive motion, the motion for copies of that motion was 16 denied and the case remained dismissed due to Plaintiff’s failure to file a First Amended 17 Complaint. [Doc. No. 26.] 18 On November 25, 2019, Plaintiff filed a Request for the Plaintiff to be Able to File 19 his Requested Amended Complaint. [Doc. No. 27.] Plaintiff now appears to recognize 20 that what he needed to file all along was a First Amended Complaint, not an opposition to 21 the motion to dismiss. Therefore, although the case has been closed for three months, the 22 Court will provide Plaintiff with a FINAL opportunity to file a First Amended 23 Complaint. Plaintiff shall have until January 6, 2020 to file a First Amended Complaint. 24 If a First Amended Complaint is not filed by January 6, 2020, the case SHALL 25 REMAIN CLOSED. 26 Plaintiff is reminded that his First Amended Complaint must be complete in itself 27 without reference to his original pleading. Defendants not named and any claims not re- 28 alleged in the First Amended Complaint will be considered waived. See S.D. Cal. CivLR 1 || 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th 2 || Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 3 || 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend 4 || which are not re-alleged in an amended pleading may be “considered waived if not 5 || repled.’’) 6 IT IS SO ORDERED. 7 Dated: December 11, 2019 € Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28