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Joseph A. Sherman v. City of Davis

April 11, 2012

JOSEPH A. SHERMAN, PLAINTIFF,
v.
CITY OF DAVIS, DEFENDANT.



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

ORDER

Defendant's motion to strike presently is calendared for hearing on April 26, 2012. Having reviewed the record, the court has determined that oral argument would not be of material assistance in determining the pending motion. Accordingly, the court will not entertain oral argument, but has reviewed the motion.

Defendant's motion seeks to strike plaintiff's amended complaint, filed on March 14, 2012, as either premature or at odds with this court's findings and recommendations. Those findings, issued March 6, 2012, recommended that defendant's motion to dismiss be granted, and plaintiff's complaint be dismissed with leave to amend. Defendant correctly points out that those findings have not yet been reviewed by the district court, and an amended complaint may not be filed unless and until the district court adopts the findings and recommendations. A cursory review of the amended complaint indicates that plaintiff has not followed the directives set forth in the findings and recommendations, and if they are adopted, any amended complaint that is filed following their adoption must adhere to the requirements set forth therein.

Accordingly, IT IS ORDERED that:

1. The April 26, 2012 hearing on defendant's motion to strike is vacated from the calendar;

2. The motion to strike, filed March 27, 2012, (dkt. no. 25), is granted; and

3. The first amended complaint, filed March 14, 2012, (dkt. no. 21), is stricken.

20120411

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