UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 11, 2012
JOHN WILLIAM ROBINSON
The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER DENYING DE NOVO REVIEW AS MOOT (Doc. 13)
On April 10, 2012, Plaintiff filed a motion seeking de novo review of the order denying his motion to remand. (Doc. 10) In this motion, Plaintiff reports that, despite his reference to state statutes that do not provide a private right of action and his reference to the Eighth Amendment to the United States Constitution, he did not intend to raise any federal claims. (Doc. 2) Plaintiff takes the position that when he discussed the Eighth Amendment to the United States Constitution in his attached "argument" section of his complaint that, somehow, this was not part of his complaint for purposes of determining whether he states a cognizable claim. Not so. Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir. Cal. 2000) ("In determining whether a plaintiff can prove facts in support of his or her claim that would entitle him or her to relief, we may consider facts contained in documents attached to the complaint. "
In any event, Plaintiff seeks leave to amend to eliminate any federal cause of action from his 2 complaint. (Doc. 13 at 2) However, on March 9, 2012, the Court dismissed Plaintiff's with leave to 3 amend. Thus, Plaintiff has already been granted permission to file an amended complaint.*fn1
However, because Plaintiff has already been granted leave to amend, the relief sought in his 5 current motion has already been granted such that his current request is MOOT. Plaintiff is advised 6 that, in his amended complaint, he is free to delete all references to federal law and federal statutes*fn2 in his complaint or any documents, whether argument or otherwise, attached thereto. At that time, the Court would be permitted to consider whether supplemental jurisdiction should be maintained or 9 whether the matter should be remanded to the state court.
ORDER Based upon the foregoing, the Court ORDERS:
1. Plaintiff's motion for de novo review is denied as MOOT.
IT IS SO ORDERED.