(PS) Avila v. McMahon et al, No. 2:2018cv00163 - Document 46 (E.D. Cal. 2018)
Court Description: ORDER signed by Magistrate Judge Allison Claire on 10/1/2018 IT IS HEREBY ORDERED that Plaintiff's 42 motion to amend is DENIED as premature and improperly filed; DENIED as MOOT 43 motion to dismiss and 44 motion to strike and the hearing set for these matters is VACATED; Plaintiff may file an amended complaint, amending claims only as to the County in accordance with the Findings and Recommendations 39 , without filing a motion to amend. The amended complaint is due on or before 10/28/2018. (Reader, L)
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(PS) Avila v. McMahon et al Doc. 46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ANTHONY AVILA, 12 13 14 15 No. 2:18-cv-00163-JAM-AC (PS) Plaintiff, v. ORDER M.D. McMAHON, et al., Defendants. 16 17 On July 17, 2018, the undersigned issued Findings and Recommendations to District 18 Judge John A. Mendez recommending that plaintiff’s case against defendant County of San 19 Joaquin (“the County”) be dismissed, but that plaintiff be given leave to file an amended 20 complaint which would amend only the claims against the County. ECF No. 39. Before Judge 21 Mendez had the opportunity to rule on the Findings and Recommendations, plaintiff submitted a 22 motion to amend. ECF No. 42. The County filed a motion to dismiss plaintiff’s proposed 23 amended complaint as well as a motion to strike. ECF Nos. 43 and 44. Following the entry of all 24 of these motions, on September 28, 2018, Judge Mendez adopted the undersigned’s Findings and 25 Recommendations in full. ECF No. 45. 26 Plaintiff’s motion to amend (ECF No. 42) was premature and improperly filed while the 27 Findings and Recommendations were pending, and therefore must be denied. Because the motion 28 to amend is denied, the County’s motions (ECF Nos. 43 and 44) are denied as moot. Plaintiff’s 1 Dockets.Justia.com 1 time period for filing an amended complaint was triggered by Judge Mendez’s adoption of the 2 undersigned’s Findings and Recommendations. ECF No. 45. Plaintiff has 30 days from the date 3 of the adoption to file an amended complaint; no motion to amend is necessary. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s motion to amend (ECF No. 42) is DENIED as premature and improperly filed; 6 2. Defendant’s motion to dismiss (ECF No. 43) and motion to strike (ECF No. 44) are 7 8 9 10 11 12 DENIED as moot and the hearing set for these matters is VACATED; 3. Plaintiff may file an amended complaint, amending claims only as to the County in accordance with the Findings and Recommendations at ECF No. 39, without filing a motion to amend. The amended complaint is due on or before October 28, 2018. IT IS SO ORDERED DATED: October 1, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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