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KZSA Broadcasting, Inc v. Immaculate Heart Radio Educational Broadcasting

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


August 31, 2010

KZSA BROADCASTING, INC, A CALIFORNIA CORPORATION; DIAMOND BROADCASTING, A CALIFORNIA CORPORATION, PLAINTIFFS,
v.
IMMACULATE HEART RADIO EDUCATIONAL BROADCASTING, INC, A CALIFORNIA NON-PROFIT CORPORATION, DOUGLAS M. DAGGS, SUCCESSOR TRUSTEE, OF THE SYLVIA DELLAR TRUST, DOUGLAS M. DAGGS, SUCCESSOR TRUSTEE OF THE DELLAR FAMILY TRUST, WEST AUCTIONS, INC, GREAT AMERICAN MOVERS, INC: ROES 1-10, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER*fn1

Pending are Defendants Douglas M. Daggs ("Daggs") and Immaculate Heart Radio Educational Broadcasting ("IHR")'s motions to dismiss Plaintiffs' original Complaint, which were both filed on July 27, 2010. (Docket Nos. 12, 13.) Plaintiff subsequently filed a First Amended Complaint on August 22, 2010, which adds two new defendants. (Docket No. 21.)

Although Fed. R. Civ. P. ("Rule") 15(a)(1) gives a plaintiff the right to amend his or her complaint once "as a matter of course," that right must be exercised within a specific time frame, i.e. within twenty-one days after serving the original complaint or within twenty-one days after the defendant has filed a dismissal motion. Here, Plaintiffs First Amended Complaint was filed more than twenty-one days after Defendants' dismissal motions were filed. Therefore, it is untimely, as argued by Defendant Daggs in his Motion to Strike Plaintiffs' First Amended Complaint. (Docket No. 22.)

However, in light of the congested nature of this Court's law and motion and trial calendars, and in the interest of avoiding the unnecessary expenditure of judicial resources and briefing on a motion for leave to amend that does not appear necessary under the circumstances, Plaintiffs' First Amended Complaint is deemed filed as of the date on which this order is filed. Therefore, the pending dismissal motions are denied as moot and Defendant Daggs' Motion to Strike the First Amended Complaint is denied.


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