UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 29, 2010
JESSICA SEYMOUR, PLAINTIFF,
UNITED STATES DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: (1) CONSTRUING PLAINTIFF'S AMENDED LEAVE TO AMEND; (2) GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND; (3) DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT COMPLAINT AS A MOTION FOR (Doc. Nos. 33, 48)
On September 27, 2010, the Court accepted for filing Plaintiff's amended complaint nunc pro tunc to September 17, 2010. (See Doc. Nos. 47, 48.) Plaintiff filed her amended complaint twenty-four days after Defendants filed a motion to dismiss Plaintiff's complaint. (Doc. No. 33.) Thus, Plaintiff did not file her amended complaint within the twenty-one-day time limit for amendment as of right. Fed. R. Civ. P. 12(a)(1)(B). Plaintiff did not seek leave to amend her complaint. See Fed. R. Civ. P. 12(a)(2).
The Court construes Plaintiff's untimely amended complaint as a motion for leave to amend her complaint. See Woods v. Carey, 525 F.3d 886, 889--90 (9th Cir. 2008) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." (internal quotation marks omitted)); Popov v. Countrywide Fin. Corp., 2009 WL 5206679, at *2 (E.D. Cal. Dec. 18, 2009) (construing pro se litigants' opposition, "together with their proposed amended complaint, as a request for leave to amend their complaint"). Good cause appearing, Plaintiff's motion for leave to amend her complaint is GRANTED. Plaintiff's amended complaint shall be the operative complaint in this action.
As a result of Plaintiff's amended complaint, the Court DENIES AS MOOT Defendants' pending motion to dismiss and VACATES the hearing presently set for October 28, 2010. Defendants' time to respond to Plaintiff's amended complaint shall run from the date the Court's Order is electronically docketed.
IT IS SO ORDERED.
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