IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 6, 2012
CARL WILLIAM COLEMAN, ET AL.,
COUNTY OF BUTTE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiffs, who are proceeding pro se, bring this civil rights action. The case currently proceeds on the first amended complaint, filed as of right on December 5, 2011. Pending before the court is plaintiffs' second amended complaint, filed on January 25, 2012.
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is one to which a responsive pleading is required, within 21 days after service of the responsive pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all other situations, a party's pleadings may only be amended upon leave of court or stipulation of all the parties. See Fed. R. Civ. P. 15(a)(2).
In this case, the amended complaint will be stricken for two reasons, either one of which is sufficient. First, plaintiffs already amended their initial complaint once as of right with the filing of the first amended complaint on December 5, 2011. Second, even if the current amendment were the first, it is untimely given that defendants have served and filed motions to dismiss. Specifically, a motion to dismiss was served on behalf of Defendants County of Butte, John Angle, Jake Hancock, David Kennedy, Pamela Richards, and Heather Murphy on December 20, 2011, and a second motion to dismiss was served on behalf of defendant Rodriguez on December 27, 2011. Plaintiffs' second amended complaint was signed on either January 21, 2012, or January 24, 2012, and filed on January 25, 2012. Even the earliest of these dates is more than 21 days after service of the second motion to dismiss. For either of these two reasons, plaintiffs must first obtain a stipulation from defendants or leave of court before a second amended complaint can be filed.
Accordingly, IT IS HEREBY ORDERED that plaintiffs' second amended complaint (Doc. 8) is stricken.
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