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Winters v. Jordan


August 21, 2009



On May 21, 2009, this court directed plaintiffs, for the second time (May 21, 2009 Order; April 17, 2009 Order and Findings and Recommendations), to obtain legal representation for their minor children, who remain as named plaintiffs in the Second Amended Complaint,*fn1 and to notify the court accordingly. Those children are not competent to represent themselves and the other named plaintiffs, who are not attorneys, may not act as their counsel in this case. The April 17 Order and Findings and Recommendations gave plaintiffs 30 days within which to obtain counsel for the minor children. The deadline was extended by the May 21, 2009 order and plaintiffs were granted an additional 60 days.*fn2 This 60-day deadline expired on July 20, 2009, and plaintiff have, to date, still not complied with the order.*fn3

"Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." E. D. Cal. L. R. ("Local Rule") 11-110 (emphasis added). "Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure and by these Local Rules. All obligations placed on 'counsel' by these Local Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules." Local Rule 83-183(a). Additionally, Rule 16 of the Federal Rules of Civil Procedure authorize sanctions for the failure "to obey a scheduling or other pretrial order."

Pursuant to this authority, dismissal would be an appropriate response to the plaintiffs' failure to comply with the court's orders. However, as a less drastic alternative the court will strike plaintiffs' Second Amended Complaint and grant leave for plaintiffs to file a new amended complaint that complies with the court's order regarding the minor children. They simply may not represent themselves and they may not be represented by persons who are not authorized to practice law. As a result, the pending motions to dismiss and to strike the Second Amended Complaint will be denied as moot. Plaintiffs will be granted leave to file a "Third Amended Complaint" that meets the following requirements: (1) no unrepresented minors shall be named as plaintiffs, (2) the birthdates and ages of all remaining plaintiffs shall be provided in the body of the complaint, and (3) the complaint shall not exceed 25 pages in length.*fn4 This will be plaintiffs' last chance to comply.

In preparing their new complaint, plaintiffs must focus on the specific cause or causes of action that they assert and state precisely which defendants each claim is asserted against. Plaintiffs' Third Amended Complaint is not the place to set forth all of plaintiffs' evidence and supporting arguments nor to characterize at length the defendants, etc., but rather to succinctly inform defendants and the court of plaintiffs' legal claims and the specific facts that support the elements of each claim and who each claim is directed against. Plaintiffs must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.*fn5 The amended complaint shall identify each defendant in both the caption and the body, and clearly set forth the allegations against each defendant. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

The amended complaint must be complete in itself. Local Rule 15-220. It shall not reference back to or incorporate by reference the prior amended complaint. Additionally, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint," London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer defendants, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). The amended complaint must bear the docket number assigned to this case and be labeled "Third Amended Complaint."

In addition, with the exception of those defendants who have already appeared in this action (who may receive the Third Amended Complaint by mail, see Fed. R. Civ. P. 5(b)(C)), plaintiffs shall serve process upon all other defendants, or obtain their waiver of service of the summons, and file proofs of such service, consistent with the requirements of Fed. R. Civ. P. 4.

Plaintiffs are strongly cautioned that further failure to comply with any order of this court, the Federal Rules of Civil Procedure, or this court's Local Rules, shall result in a recommendation that this action be dismissed with prejudice. See Fed. R. Civ. P. 41(b); Local Rule 11-110.

Finally, plaintiffs have filed several other miscellaneous requests which are addressed as follows. Plaintiffs have requested in this action that the court reimburse their filing fee (Dckt. No. 7) that was paid in the separate action, Civ. No. 09-0534 FCD DAD PS, which was ordered remanded to state court. That request is denied.

Plaintiffs also filed: (1) a motion to stay until (a) plaintiff Brent Winters, a lawyer licensed in Illinois, has completed serving a one-year sentence imposed upon him April 30, 2009, by the U.S. District Court for the Central District of Illinois, in United States v. Tylman et al., Dckt. No. 06-CR-20023 (based on a finding that he signed a fraudulent federal tax return in 1998); or (b) such sentence is reversed on appeal, see Dckt. Nos. 17, 20; (2) the applications of plaintiffs Brent Winters and Susan Winters to proceed in forma pauperis in their appeal to the Ninth Circuit of this court's order filed June 24, 2009, denying plaintiffs' motion for emergency injunctive relief, see Dckt. Nos. 31, 41, 47; see also Dckt. Nos. 9 and 22; and (3) an "Information Notice of Refusal to Consent to Magistrate's Hearing of Motions and to Vacate Hearing," which challenges the authority of the undersigned to hear the pending motions, see Dckt. No. 52. The court addresses each in turn.

Although plaintiffs filed documentation stating that Brent Winter's "motion for release on bond pending appeal" was denied by the U.S. District Court for the Central District of Illinois, on June 4, 2009, see Dckt. No. 20, at p. 15, Brent Winter's in forma pauperis application, filed August 4, 2009, indicates that he remains unincarcerated, see Dckt. No. 47. More importantly, plaintiffs have not established any basis for staying this case pending the service of a sentence by an incarcerated attorney. Accordingly, it will be recommended that plaintiffs' motion for stay of this action, Dckt. No. 17, be denied.

Lastly, plaintiffs' challenge the authority of the undersigned to hear the pending motions. The undersigned is expressly authorized by federal statute and local rule -- 28 U.S.C. § 636(b)(1), and E. D. Cal. L. R. 72-302(c)(21) -- to hear such matters and to render findings and recommendations for the district judge's review. The challenge to that authority is without merit and, accordingly, plaintiffs' motion at Dckt. No. 52 will be denied.


For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiffs' Second Amended Complaint is dismissed with leave to file a Third Amended Complaint that is in strict conformance with the requirements set forth herein;

2. Plaintiffs shall file their Third Amended Complaint within 30 days after the filing date of this order;

3. Plaintiffs shall complete service of process of their Third Amended Complaint, as set forth in Fed. R. Civ. P. 4, and described herein, within 60 days after it is filed;

4. Failure of plaintiffs to timely file a Third Amended Complaint, or failure of the Third Amended Complaint to strictly comply with the requirements set forth herein, shall result in a recommendation that this action be dismissed with prejudice;

5. Defendants' motions to dismiss and to strike the Second Amended Complaint, Dckt. Nos. 33, 34, and 42, are denied as moot;

6. Plaintiffs' "Information Notice of Refusal to Consent to Magistrate's Hearing of Motions and to Vacate Hearing," Dckt. No. 52, construed as a motion to have all pretrial matters heard by the district judge, is denied;

7. Plaintiffs' request for reimbursement of their filing fee in Civ. No. 09-0534 FCD DAD PS, Dckt. No. 7, is denied; and,

IT IS HEREBY RECOMMENDED that Plaintiffs' motion to stay this action, Dckt. No. 17, be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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