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Collins v. Planning Commission of the City of Madera

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 28, 2010

LYNN M. COLLINS, JAY & ANDREW YOUNT FAMILY PRESERVATION SOCIETY, INC., AND JAY DEE YOUNT, PLAINTIFFS,
v.
THE PLANNING COMMISSION OF THE CITY OF MADERA, CALIFORNIA, DENNIS WRIGHT, KENNY SHOETTLER AND WILLIE HIBDON, DEFENDANTS.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ORDER DISMISSING CLAIMS AND DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT (Document 8)

On May 19, 2010, the Magistrate Judge issued Findings and Recommendations recommending that certain causes of action be dismissed from this action. The Court further recommended that Plaintiffs be allowed to file an amended complaint to address other deficient claims, as well as the legal representation status of named Plaintiff Jay & Andrew Yount Family Preservation Society, Inc. ("YFPSI"). The Findings and Recommendations were served on Plaintiffs and contained notice that any objections were to be filed within thirty (30) days. Plaintiffs have not filed any objections.

In accordance with the provisions of Title 28 of the United States Code section 636 (b)(1)(c), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the Findings and Recommendations are supported by the record and proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations dated May 19, 2010, are ADOPTED IN FULL;

2. Plaintiffs' claims pertaining to California's Brown Act are DISMISSED;

3. Plaintiffs' claims pertaining to California Civil Code section 1573 are DISMISSED;

4. Plaintiffs' claims pertaining to Title 18 of the United States Code sections 241, 242 and 245 are DISMISSED;

5. Plaintiffs shall be permitted to file an amended Complaint to include claims made pursuant to California Business and Professions Code section 17001, and claims pertaining to California Government Code sections 65583 and 65589.5. Plaintiffs are reminded they must address the legal representation status of YFPSI if it remains a named Plaintiff in the amended Complaint;

6. Any amended Complaint shall be filed within thirty (30) days of the date of service of this order. Further, if Plaintiffs decide to file an amended Complaint, Plaintiffs are reminded that an amended complaint supercedes the original complaint (Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)), and must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. Plaintiffs are warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474. If Plaintiffs attempt to amend beyond the claims outlined above, the Court will dismiss the case; and

7. Finally, Plaintiffs are also advised that if they fail to timely file an amended Complaint, the Court will dismiss this action for failure to follow the Court's order and diligently prosecute this action.

IT IS SO ORDERED.

20100628

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