IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 31, 2011
SCOTT N. JOHNSON, PLAINTIFF,
JANICE M. CONROY, INDIVIDUALLY AND D/B/A WHISKEY DICKS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On March 31, 2011, this case was before the undersigned for a status (pretrial scheduling) conference, and only plaintiff and defendant Raymond W. Hadley filed a status report in advance of the status conference (Dkt. No. 24).*fn1 Plaintiff, who is an attorney, appeared on his own behalf. Defendants Janice M. Conroy, Raymond W. Hadley, and Evelyn Cenidoza are proceeding without counsel, and each appeared on his or her own behalf.*fn2 No appearance was entered on behalf of defendants Ariel Sanchez, Eugene Fisher, and Carole Ann Fisher; the Clerk of Court previously entered default against these three defendants (Dkt. No. 23).*fn3
As a result of the state of the pleadings on file, and for the reasons discussed at the status conference, the undersigned will not enter a status (pretrial scheduling) order at this time and, instead, will set another status (pretrial scheduling) conference. Briefly stated, the undersigned expressed concerns at the status conference regarding the sufficiency of the allegations contained in plaintiff's complaint. Those allegations do not in all instances apprise each of the named defendants of the specific allegations that support the claims against him or her. Moreover, the undersigned expressed concern, without prejudging the matter, regarding the ability of the court to enter a default judgment against any of the defaulting parties were plaintiff to file motions seeking default judgments against those defaulting defendants based upon the allegations in the current complaint.
Thus, the undersigned expressed an inclination to dismiss sua sponte plaintiff's complaint with leave to file a first amended complaint after providing notice to plaintiff and an opportunity to file a written opposition to such a proposed dismissal. See Lee v. City of L.A., 250 F.3d 668, 683 n.7 (9th Cir. 2001) (noting that a trial court may dismiss a claim sua sponte pursuant to Federal Rule of Civil Procedure 12(b)(6) if it gives notice of its intention to dismiss and affords the plaintiff an opportunity to at least submit a written memorandum in opposition to such motion). No such sua sponte dismissal will be entered, however, because plaintiff voluntarily requested leave of court to file a first amended complaint that clarifies his claims against each defendant. Plaintiff also agreed to set aside the defaults entered against defendants Ariel Sanchez, Eugene Fisher, and Carole Ann Fisher, subject to the re-entry of such defaults by the Clerk of Court if these defendants fail to file a timely answer to the first amended complaint.
Finally, the court advised defendants Conroy, Hadley, and Cenidoza that the letters that each of these defendants previously filed with the court (Dkt. Nos. 6, 7, 9) do not constitute legally sufficient answers to the complaint. See Fed. R. Civ. P. 8. The court advised defendants Conroy, Hadley, and Cenidoza that they need to follow the Federal Rules of Civil Procedure and the court's Local Rules, the latter of which are available at the Office of the Clerk, in filing an answer to the first amended complaint.*fn4 The court further admonished these defendants that their failure to do so could result in the entry of default and a default judgment against each of them.
For the reasons stated above, IT IS HEREBY ORDERED that: 1. Pursuant to plaintiff's request, plaintiff's complaint is dismissed without prejudice. Plaintiff shall have 21 days from the date of entry of this order within which to file and serve an amended complaint entitled "First Amended Complaint." Plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. An amended complaint must be complete in itself. See E. Dist. Local Rule 220. This requirement is because, as a general rule, an amended complaint supersedes the original complaint. SeeLoux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files an amended complaint, the prior complaints no longer serve any function in the case. Therefore, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).
2. The defaults entered by the Clerk of Court against defendants Ariel Sanchez, Eugene Fisher, and Carole Ann Fisher (Dkt. No. 23) are set aside.
3. Each defendant shall file an answer to plaintiff's first amended complaint within 14 days of service of that amended pleading.
4. The undersigned shall conduct a status (pretrial scheduling) conference in this matter on June 23, 2011, at 10:00 a.m., in Courtroom 25. All parties shall file status reports, preferably a joint status report, at least 14 days in advance of the status (pretrial scheduling) conference. Failure to do so may result in the imposition of sanctions, including monetary sanctions.
IT IS SO ORDERED.