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Daniel Ager, et al v. Anthony Hedgpeth

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


January 31, 2013

DANIEL AGER, ET AL., PLAINTIFFS,
v.
ANTHONY HEDGPETH, ET AL., DEFENDANTS.

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' SECOND AMENDED COMPLAINT [Re: Docket No. 38]

Presently before the court is Defendants Anthony Hedgepath, Belinda Hendrick, and D. Spencers' (collectively, "Defendants") Motion to Strike Plaintiffs Daniel Ager, Elizabeth Ager, and 20 Kathryn Ager's (collectively, "Plaintiffs") Second Amended Complaint. The court found these 21 matters suitable for decision without oral argument pursuant to Civil Local Rule 7-1(b) and 22 previously vacated the hearing. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 23 1331. Having fully reviewed the parties' briefing, and for the foregoing reasons, the court GRANTS Defendants' Motion 25

I.BACKGROUND

Plaintiffs filed this lawsuit pursuing claims arising under 42 U.S.C. § 1983 on behalf of themselves and their deceased father Dr. Alan Ager. Dkt. No. 1. Plaintiffs' complaint alleges that 28 Defendants violated Plaintiffs' rights when they failed to take reasonable steps to protect Dr. Ager 2 from an obvious risk of attack from his cellmate and Dr. Ager was ultimately strangled to death by 3 this cellmate. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 4

August 24, 2012 and granted leave to amend the complaint within the next thirty days to correct the 6 infirmities the court had identified. Dkt. No. 32. That same day, the court issued its Case 7 Management Order, which included an order "that the deadline for joinder of any additional 8 parties, or other amendments to the pleadings, is October 30, 2012." Dkt. No. 33. Plaintiffs filed a 9 Benjamin Bloch, D. Garcia, Antonella Aluzri, and J. Martin. Dkt. No. 35. Less than two weeks later, on October 5, 2012, Plaintiffs filed a Second Amended Complaint adding Carl Warfield as an additional defendant. Dkt. No. 37. 13 granting them leave to join additional parties and further amend their pleadings. This interpretation 16 of the court's Order is incorrect. The Case Management Order sets the schedule for an individual 17 case but the Federal Rules of Civil Procedure, the Local Rules of the Northern District of 18

California, and this court's Standing Orders establish the rules by which any litigation in this court 19 must proceed. Put simply, the Case Management Order governs when certain steps in the litigation 20 should occur, but the constellation of rules set forth above set forth how the litigation should 21 proceed. 22

Dkt. No. 17. The court granted-in-part and denied-in-part Defendants' motion to dismiss on 5 First Amended Complaint on September 24, 2012, adding defendants Arlene Solis, Robert Burgh, 10

II.DISCUSSION

Plaintiffs argue that they understood the court's Case Management Order as the court's When the time to amend a pleading as of course has passed, Federal Rule of Civil Procedure 15(a)(2) requires a party to obtain written consent from the opposing party or leave of 24 court to file an amended pleading. Here, Plaintiffs' amendment as of course period ended twenty-25 one days after Defendants served their Motion to Dismiss, i.e., May 2, 2012.

The court's Case 26 2012. Dkt. No. 33. Setting this deadline did not displace Rule 15(a)(2)'s requirement that a party 28 Management Order then set the deadline for seeking any amendment of pleadings as October 20, 27

20130131

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