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Ester Burnett v. Dr. Dugan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 8, 2011

ESTER BURNETT,
PLAINTIFF,
v.
DR. DUGAN, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING AS PREMATURE AND WITHOUT PREJUDICE PLAINTIFF'S EX PARTE MOTION FOR REQUEST OF WAIVER OF SERVICE [doc. #109]

Plaintiff has filed an ex parte motion*fn1 requesting an extension of time to serve newly named defendants in his amended complaint or supplemental complaint and waiver of service of process. On November 10, 2009, plaintiff filed a second amended complaint ("SAC") [doc. #83] that defendants moved to dismiss.*fn2 While the motions to dismiss the SAC were pending, plaintiff filed a motion for leave to file a supplemental complaint. [doc. #89] The motions were referred to the assigned magistrate judge for a report and recommendation ("Report") which was filed on July 23, 2010. [doc. #102] On August 30, 2010, plaintiff filed objections to the Report, the present motion for a waiver of service and a motion for leave to file an opposition to the motions to dismiss.

The Court adopted in part the Report and granted the motion to dismiss the unexhausted claims and the motion to dismiss the SAC on September 30, 2010.*fn3 [doc. #115] But the Court again referred plaintiff's motion for leave to file a supplemental complaint to the magistrate judge based on a change in the law, i.e., Rhodes v. Robinson, 2010 WL 3489777 (9th Cir. 2010).

The magistrate judge filed a supplemental report and recommendation on February 23, 2011. Objections to the supplemental report are due on March 9, 2011.

In returning to plaintiff's pending motion for an extension of time to serve newly named defendants in his amended complaint or supplemental complaint and waiver of service of process, the Court finds that the motion is premature and will be denied on that basis. After reviewing the supplemental Report, the issue of service of process may become relevant and timely. In such a situation, plaintiff may renew his motion.

Based on the foregoing, IT IS ORDERED denying as premature and without prejudice plaintiff's ex parte motion for an extension of time to serve newly named defendants in his amended complaint or supplemental complaint and waiver of service of process.

IT IS SO ORDERED.


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