IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 3, 2009
KHAMMAY KEOMANIVONG, PETITIONER,
ROBERT A. HOREL, WARDEN, ET AL., RESPONDENTS.
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.
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