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Fernando Shah v. Employment Development Department


April 6, 2012



This case, in which plaintiff is proceeding pro se, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). On February 23, 2012, the court dismissed plaintiff's complaint and granted plaintiff thirty days to file an amended complaint. Dckt. No. 21.

On March 23, 2012, plaintiff filed a document labeled "First Amended Complaint." Dckt. No. 22. However, the document is not an amended complaint; rather, it appears to be an opposition to defendant's earlier motion to dismiss. Id. Because the motion to dismiss has already been granted and the newly-filed document does not comply with the requirements for an amended complaint, that document will be stricken. Plaintiff will be given additional time to file a proper amended complaint to the extent that plaintiff can properly state a claim under Title II of the ADA, the Rehabilitation Act of 1973, or another appropriate federal statute. See Dckt. No. 21 at 4.

As indicated in the February 23, 2012 order dismissing plaintiff's complaint, the amended complaint must (1) identify the specific theory or theories on which the complaint is based and (2) state the specific factual conduct that supports plaintiff's right to relief on each such theory. Id. "In other words, plaintiff must allege that defendant violated a particular statute or statutes (e.g., Title II of the ADA, the Rehabilitation Act, etc.), and shall state the specific conduct by defendant that violates each such statute." Id. Additionally, the amended complaint shall plead plaintiff's claims in "numbered paragraphs, each limited as far as practicable to a single set of circumstances," as required by Federal Rule of Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the left margin, as required by Eastern District of California Local Rules 130(b) and 130©. Any amended complaint shall also use clear headings to delineate each claim alleged and against which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead clear facts that support each claim under each header.

Plaintiff is again reminded that the court cannot refer to prior pleadings in order to make an amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself. 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). Accordingly, once plaintiff files an amended complaint, the original no longer serves 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), and defendants not named in an amended complaint are no longer defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's March 23, 2012 amended complaint, Dckt. No. 22, is stricken;

2. Defendant's motion to dismiss plaintiff's March 23, 2012 amended complaint, Dckt. No. 23, is denied as moot, and the May 23, 2012 hearing thereon is vacated;

3. Plaintiff has until April 30, 2012 to file an amended complaint, as provided herein and in the February 23, 2012 order;

4. Failure to timely file an amended complaint in accordance with this order will result in a recommendation this action be dismissed;

5. Defendants shall file a response to plaintiff's amended complaint within fourteen days from the date an amended complaint is filed;

6. The May 16, 2012 status (pretrial scheduling) conference is continued to July 11, 2012 at 10:00 a.m. in Courtroom No. 24; and

7. The parties shall file status reports, as required by the May 5, 2011 order, on or before June 27, 2012.


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