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Keomanivong v. Horel

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 3, 2009

KHAMMAY KEOMANIVONG, PETITIONER,
v.
ROBERT A. HOREL, WARDEN, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On April 2, 2009, the court granted respondent's motion to dismiss and granted petitioner leave to file an amended petition. On April 16, 2009, petitioner filed a first amended petition pursuant to the court's order. On June 26, 2009, petitioner filed a motion to amend his petition, together with a second amended petition.

On June 29, 2009, respondent filed an answer to the April 16, 2009 first amended petition, along with a motion to consolidate this action with another action. Respondent did not file an opposition or otherwise respond to petitioner's motion to amend. Under the applicable rule, "[a] party may amend its pleading once as a matter of course before being served with a responsive pleading." Fed. R. Civ. P. 15(a)(1)(A). Here, petitioner filed his motion to amend, along with a second amended petition, before respondent filed a responsive pleading. Thus, petitioner must be permitted to proceed on the second amended petition and respondent's June 29, 2009 answer is rendered moot.

Accordingly, it hereby is ORDERED that:

1. Petitioner's June 26, 2009 motion to file a second amended petition is granted;

2. Respondent's June 29, 2009 motion to consolidate is denied as moot; and,

3. Respondent has 30 days from the date this order is served to respond to the second amended petition.

20090903

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