IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 16, 2010
RAY ANTHONY STEVENS, PLAINTIFF,
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is plaintiff's motion for leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15. (Dkt. No. 36.) Despite the fact that plaintiff filed his motion after expiration of the applicable law and motion completion date and did not notice his motion for an appropriate hearing date under this court's Local Rules, the court will, out of an abundance of caution, order that defendant file a response to the motion and will set the matter for hearing if necessary.
Plaintiff filed his complaint on June 1, 2009. This court entered a Status (Pretrial Scheduling) Order, which provided, in part, that "[n]o further . . . amendments to pleadings is permitted except with leave of court, good cause having been shown." (Dkt. No. 17 at 2.) It further provided: "All law and motion, except as to discovery . . . shall be conducted so as to be completed by August 20, 2010. The word "completed" in this context means that all law and motion matters must be heard on or before the above date." (Id.) In a subsequent order, the court granted, out of an abundance of caution and despite the lack of any obligation to do so, plaintiff's motion for extension of the discovery completion deadline and, as a result, also extended the law and motion completion deadline to September 9, 2010. (Dkt. No. 22 ("All law and motion, except as to discovery, shall be conducted so as to be "completed," as that term is defined in the Status (Pretrial Scheduling) Order, by September 9, 2010.").) The Final Pretrial Conference in this matter is currently set for November 5, 2010. (Dkt. No. 17 at 4.)
Plaintiff initially filed a motion for leave to amend his complaint on August 4, 2010, but failed to properly notice that motion for a hearing before the court and failed to lodge his proposed amended complaint. (Dkt. No. 23.) Because of plaintiff's failure to follow the court's Local Rules, the court ordered plaintiff to re-notice his motion for an appropriate hearing date and lodge the proposed amended complaint with the court. (Dkt. No. 25.) Plaintiff did not immediately correct the deficiencies in his motion.
On September 13, 2010, over one month later and after the expiration of the already continued law and motion completion deadline, plaintiff filed the pending motion for leave to file an amended complaint, together with a proposed amended complaint.*fn1 Plaintiff noticed his untimely motion for a hearing to take place on September 9, 2010, which is in violation of Local Rule 230(b).
Despite these substantial deficiencies, the undersigned will, out of an abundance of caution, consider plaintiff's motion. As detailed below, the undersigned will order that defendant file a written opposition or statement of non-opposition to plaintiff's motion, in which defendant may raise any and all objections to the granting of plaintiff leave to amend his complaint, both procedural in nature and related to the merits of the motion and the proposed amended complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. The court will consider plaintiff's motion for leave to amend his complaint despite the fact that plaintiff filed his motion after expiration of the law and motion completion deadline and did not notice an appropriate hearing date.
2. Defendant shall file and serve a written opposition to plaintiff's motion, or a statement of non-opposition, on or before September 30, 2010. In addition to addressing the merits of plaintiff's motion and plaintiff's proposed amended complaint, defendant's opposition may include, among other things, objections to the untimely nature of plaintiff's filing and the prejudice it believes it would suffer were the court to permit plaintiff to file an amended complaint.
3. Plaintiff may file and serve a written reply to defendant's opposition or statement of non-opposition on or before October 7, 2010.
4. The court will set a hearing on plaintiff's motion should it determine that one is warranted.
IT IS SO ORDERED.