Sandoval v. U.S. Customs and Border Protection ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JENNY SANDOVAL, Case No.: 23cv1461-JES (BLM) 12 Plaintiff, ORDER STRIKING AMENDED 13 v. COMPLAINT 14 UNITED STATES CUSTOM AND [ECF No. 6] BORDER PROTECTION; MANUEL 15 ACEVEDA; PAUL GARDIA; and Does 16 1-100, inclusive, 17 Defendants. 18 On November 30, 2023, Defendant the United States of America filed a motion to 19 dismiss. ECF No. 5. On January 10, 2024, Plaintiff filed a First Amended Complaint 20 (“FAC”). ECF No. 6. 21 Federal Rule of Civil Procedure 15 governs amendment of pleadings. Under Rule 22 15(a), a plaintiff may amend a pleading as a matter of course either “21 days after serving 23 it” or “if the pleading is one to which a responsive pleading is required, . . . 21 days after 24 service of a motion under Rule 12(b), (e), or (f) . . . .” Fed. R. Civ. P. 15(a)(1). “In all 25 other cases, a party may amend its pleading only with the opposing party’s written 26 consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 27 Plaintiff’s filing of the FAC is improper. The original complaint was filed on 28 August 8, 2023, so the timing for amending as a matter of course under Rule 15(a)(1)(A) | has long passed. Defendant filed the Motion to Dismiss under Rule 12 on November 30, 2 2023, making the deadline to amend as a matter of course under Rule 15(a)(1)(B) to be 3 || December 21, 2023. The FAC was not filed until January 10, 2024, twenty days after the 4 deadline passed. Finally, Plaintiff did not seek leave of court to file the FAC, nor is there 5 any indication that the opposing party has provided written consent to file an amended 6 || pleading. Fed. R. Civ. P. 15(a)(2). 7 According, the Court STRIKES the FAC from the docket as improperly filed. See 8 Cooley v. Marshal, No. 2:09-CV-00559-RLH, 2011 WL 3240453, at *3 (D. Nev. July 28, ? 11201 1) (striking sua sponte amended complaint that was not filed within deadline under 10 15(a)). The Court also STRIKES the associated Summons that was issued. ECF 11 7. 12 Defendant’s Motion to Dismiss the original complaint remains pending before the 13 || Court. ECF No. 5. The Court finds the matter appropriate for disposition without oral 14 argument and takes the matter under submission on the papers pursuant to Civil Local 1S Rule7.1(d)(1). 16 IT IS SO ORDERED M7 Dated: January 11, 2024 A 18 dO Aa Nes 19 Honorable James E. Simmons Jr. 20 United States District Judge 21 22 23 24 25 26 27 28