IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 23, 2012
LUCILLE H. TELLY, PLAINTIFF,
CITY OF LOS BANOS; LOS BANOS POLICE DEPARTMENT; DETECTIVE JUSTIN MELDIN; AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.
ORDER VACATING HEARING DATE OF AUGUST 27, 2012, AND TAKING MATTER UNDER SUBMISSION
In this civil rights action for damages, defendants City of Los Banos, Los Banos Police Department, et al. (collectively, "Defendants") have filed a motion for summary judgment as to all claims alleged by plaintiff Lucille H. Telly ("Plaintiff"). Also before the court is a motion by Plaintiff to strike a portion of Defendants' Statement of Undisputed Material Facts submitted in support of their motion for summary judgment. Both motions are currently scheduled for oral argument to be held August 27, 2012. On August 10, 2012, Plaintiff filed a motion to amend the complaint to substitute an individual for one of the "Doe" Defendants (hereinafter, the "Motion to Amend"). The hearing date on Plaintiffs Motion to Amend was advanced by minute order from the originally scheduled date of September 14, 2012, to the August 27 date currently set for the other two motions. The Court has reviewed Plaintiffs' Motion to Amend and finds it is not ready for decision because Plaintiff has failed to provide a proposed amended complaint in conformity with Local Rule 137(c).
Notwithstanding Plaintiff's contention that the legal theories advanced by Plaintiff's original complaint will not be altered by amendment, the court cannot proceed on decision of Defendants' motion for summary judgment until the issue of amendment is resolved. At minimum, leave to amend implicates the right of the newly joined Defendant to be served with a copy of the complaint and summons prior to the time the court makes any decision on the substantive merits of Plaintiffs' claims.
Defendants' motion for summary judgment will be held in abeyance until the issue of amendment is resolved. The date currently set for oral argument on Defendants' motion for summary judgment, Plaintiff's motion to strike and Plaintiff's Motion to Amend is hereby VACATED and no party shall appear at that time. Plaintiff shall, within fourteen (14) days of service of this order, file and serve a proposed amended complaint in conformity with Local Rule 137(c). Upon being served with the proposed amended complaint, Defendants shall re-submit any opposition or amendment to their prior opposition within seven (7) days. Plaintiff may file a reply not later than seven (7) days following service of any new or amended opposition by Defendant. The court will thereafter take the matter under submission or order the parties appear for oral argument as the court deems appropriate.
IT IS SO ORDERED.
CHIEF UNITED STATES DISTRICT JUDGE
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