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Marie Parlante v. Savanna Cazares

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 21, 2012

MARIE PARLANTE, PLAINTIFF,
v.
SAVANNA CAZARES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

This diversity action*fn1 against numerous defendants, originally filed on October 13, 2011 (dkt. no. 1), was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has paid the filing fee and is proceeding in this action pro se. On February 16, 2012, the court dismissed plaintiff's complaint with leave to amend. The court ordered plaintiff to file any first amended complaint within 28 days of that order, imposed various service deadlines, and set a status conference for May 24, 2012. (See Dkt. No. 16.)

Subsequently, on March 16, 2012, plaintiff filed a motion for an extension of time to file a first amended complaint. (Dkt. No. 24.) Along with this motion, plaintiff enclosed three handwritten pages that she states she would like as an amendment to the initial complaint. (Id.)

Plaintiff does not provide any particular reason for seeking an extension of time. Nevertheless, because the case has not yet been scheduled for trial and discovery in this matter is currently stayed, the court concludes that an extension would not result in significant prejudice to any party. Accordingly, the court will grant plaintiff an additional 28 days to file any first amended complaint in accordance with the court's February 16, 2012 order (dkt. no. 16), with the understanding that further requests for extension will not be entertained in the absence of good cause. The court will also make appropriate changes to the service deadlines and reschedule the status conference, as outlined below.

Plaintiff is further informed that the court cannot refer to a prior pleading, such as the original complaint, in order to make any first amended complaint complete. E.D. Cal. L.R. 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Therefore, plaintiff cannot merely file handwritten (or typed) pages to add to the original complaint. Any first amended complaint must be complete in itself. Once plaintiff files any first amended complaint, the original complaint no longer serves any function in the case.

Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:

1. The May 24, 2012 status conference is vacated.

2. Plaintiff's motion for an extension of time to file a first amended complaint (dkt. no. 24) is granted.

3. Plaintiff shall file and serve any first amended complaint in accordance with the court's February 16, 2012 order on the defendants that have already been served with process (including defendants Cazares, Borkowski, and Ravandi) within 28 days of the date of service of this order. Those defendants will be required to respond to the first amended complaint within 21 days of being served.

4. Plaintiff shall complete service of process with the first amended complaint on the defendants that have not yet been served with process within 60 days from the date of service of this order. Those defendants will be required to respond to any first amended complaint within 21 days of being served. Failure to complete service of process on defendants within 60 days of the date of service of this order will result in a recommendation that such defendants be dismissed from the case with prejudice pursuant to Fed. R. Civ. P. 41(b).

5. A status conference is set for June 28, 2012 at 10:00 a.m. in Courtroom 9 before the undersigned. The parties shall submit a joint status report in accordance with the court's previous order requiring joint status report (see dkt. no. 4) no later than seven (7) days prior to the status conference, i.e. on June 21, 2012. The status report shall indicate whether the parties consent to referral to the court's Voluntary Dispute Resolution Program ("VDRP").

6. Discovery remains stayed until the status conference has been conducted.

7. Failure to file and serve a first amended complaint in accordance with this order will result in a recommendation that the action be dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b).


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