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Andre-Gollihar v. County of San Joaquin

October 1, 2010

SANDRA ANDRE-GOLLIHAR, PLAINTIFF,
v.
COUNTY OF SAN JOAQUIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently pending before the court is a motion to dismiss and/or motion for more definite statement filed by defendant San Joaquin County Sheriff's Office (the "Sheriff's Office"). This order addresses the impact of plaintiff's recent filing of a First Amended Complaint.

On August 6, 2010, the Sheriff's Office filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b) and noticed the motion for a hearing to take place on September 30, 2010. (Dkt. No. 14.) Plaintiff, who is proceeding without counsel and in forma pauperis, was required to file and serve a written opposition or statement of non-opposition to the Sheriff's Office's motion to dismiss on or before September 16, 2010. See E. Dist. Local Rule 230(c). Plaintiff failed to file a timely written opposition or statement of non-opposition. The court entered an order requiring plaintiff to show cause in writing (the "OSC"), no later than September 30, 2010, why sanctions, including dismissal of her lawsuit, should not be imposed for plaintiff's failure to prosecute this action and failure to file an opposition or statement of non-opposition to the pending motion. (Dkt. No. 16.)

On September 28, 2010, plaintiff filed a First Amended Complaint, which stated that it also constituted plaintiff's response to the OSC. (Dkt. No. 18.) The First Amended Complaint indicates that plaintiff intended to file an amended pleading on or around September 1, 2010, but that plaintiff was hospitalized and thus prevented from filing the amended pleading until the end of September.*fn1 Plaintiff also filed a letter from her treating physician, which explains that plaintiff was hospitalized on August 29, 2010, and was ultimately discharged on September 9, 2010. (Dkt. No. 19.) The undersigned finds that plaintiff's hospitalization provides sufficient cause to vacate the OSC.

The resulting question is whether plaintiff should be permitted to amend her complaint. Federal Rule of Civil Procedure 15(a) provides, in relevant part:

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or

(f), whichever is earlier.

(2)Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

Here, plaintiff filed her First Amended Complaint on September 28, 2010, which was more than 21 days after the Sheriff's Office filed its motion to dismiss. The court's docket also indicates that plaintiff neither obtained the other parties' written consent to file the First Amended Complaint nor sought leave from the court to file that amended pleading. Ordinarily, the untimely filing of plaintiff's First Amended Complaint would result in that pleading having no legal effect. See, e.g., Gengler v. United States ex rel. Dep't of Def. & Navy, 463 F. Supp. 2d 1085, 1093 (E.D. Cal. 2006) (citing United States ex rel Mathews v. HealthSouth Corp., 332 F.3d 293, 295 (5th Cir. 2003)); Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644 (D. Nev. 1995); Straub v. Desa Indus., Inc., 88 F.R.D. 6, 8 (M.D. Pa. 1980); 6 Charles Alan Wright, et al., Federal Practice & Procedure § 1484 (3d. ed. 2010 update).

Nevertheless, the undersigned finds that good cause supports construing plaintiff's First Amended Complaint as a request for leave to amend her complaint, and also supports deeming the First Amended Complaint as timely filed. It appears that plaintiff's serious illness might have played a role in her failure to file the First Amended Complaint within 21 days of the filing of the Sheriff's Office's motion to dismiss. Moreover, district courts have recognized that a court may consider an untimely amended pleading served without judicial permission as properly introduced when the court would have granted leave to amend had it been sought. See, e.g., Ritzer, 162 F.R.D. at 644; Straub, 88 F.R.D. at 9. Accepting plaintiff's First Amended Complaint as timely filed is consistent with the Ninth Circuit Court of Appeals's guidance that the policy favoring amendments to pleadings should be applied with "extreme liberality."*fn2 See, e.g., Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991). Accordingly, the court will accept plaintiff's First Amended Complaint as timely filed. As a result, the court will vacate the hearing on the Sheriff's Office's motion to dismiss; the Sheriff's Office may file a newly noticed motion to dismiss the First Amended Complaint if it so desires.

The remaining task for the court is the screening of plaintiff's First Amended Complaint. Because plaintiff is proceeding in forma pauperis, the court is required to again screen plaintiff's pleading. See 28 U.S.C. § 1915(e)(2); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. ยง 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, or ...


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