IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 1, 2010
ANNE SABETTA, PLAINTIFF,
THE NATIONAL RAILROAD PASSENGER CORP., DBA AMTRAK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
This order addresses the plaintiff's recent filing of an amended complaint in this action. Plaintiff,*fn1 who is proceeding without counsel, filed a document entitled "Second Amended Complaint" on October 25, 2010. (Dkt. No. 32.) Plaintiff filed her original complaint in this action on September 16, 2008. (Dkt. No. 1.) Because this case is proceeding in forma pauperis, the court screened plaintiff's complaint. Following that screening under 28 U.S.C. § 1915(e)(2), the court dismissed the complaint and permitted plaintiff to file an amended complaint. (Dkt. No. 9.)
On September 3, 2009, plaintiff filed a first amended complaint. (Dkt. No. 12.) Following the screening of that complaint, the court ordered dismissal of certain claims and plaintiffs. (Dkt. Nos. 14, 19.) By separate order, the court ordered service of the first amended complaint upon defendants. (Dkt. No. 20.) In that order, plaintiff was required to submit certain documents to the United States Marshals for service of her complaint. Plaintiff was further ordered to submit "within 10 days thereafter," a "statement with the court that such documents have been submitted to the United States Marshal." (Dkt. No. 20 at 2.) The docket in this action does not reflect that plaintiff has filed any such statement. In fact, the docket does not reflect service upon any defendant or appearance by any defendant.
On October 25, 2010, plaintiff filed a document entitled "Second Amended Complaint," purportedly filed by three plaintiffs, including the two who have previously been dismissed from this case. The court's docket does not indicate that plaintiff sought the other parties' written consent or leave to amend from the court, as required by Federal Rule of Civil Procedure 15(a)(2).*fn2 Moreover, purported plaintiffs Karl Wichelman and Bridgette Walker are no longer parties to this action.
Accordingly, plaintiff's Second Amended Complaint was improperly filed and is of no legal effect. The court will strike that pleading pursuant to Federal Rule of Civil Procedure 12(f)(1) and the court's inherent power. Presently, the First Amended Complaint (Dkt. No. 12), as modified by the court's subsequent orders, serves as the operative complaint in this matter.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's Second Amended Complaint (Dkt. No. 32) is stricken.
2. Plaintiff shall file, on or before November 15, 2010, a statement with the court that she has provided all information needed by the United States Marshal to effectuate service of process as detailed in this court's July 6, 2010 order (Dkt. No. 20). Failure to comply with orders of this court may result in sanctions, including but not limited to dismissal of this action.*fn3
IT IS SO ORDERED.