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James N. Owens v. Russell Nuxoll et al

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 16, 2013

JAMES N. OWENS, PLAINTIFF,
v.
RUSSELL NUXOLL ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

This case came on for a Status (Pretrial Scheduling) Conference on April 11, 2013. Plaintiff James N. Owens ("plaintiff"), who is proceeding without counsel and in forma pauperis, appeared on his own behalf.*fn1 Defendant Russell Nuxoll appeared telephonically on his own behalf. Defendant Janet Sylten appeared telephonically on her own behalf. Defendants Nuxoll and Sylten are collectively referred to herein as "defendants."

I. BACKGROUND

Plaintiff filed his original complaint on June 1, 2012. That pleading alleged claims for civil assault and civil battery. (Compl., Dkt. No. 1 at 1.)

On June 21, 2012, following an order recommending dismissal for lack of subject matter jurisdiction (Dkt. No. 3), plaintiff filed a verified First Amended Complaint with the new allegation that this case satisfies the requirements for diversity jurisdiction based upon defendants' status as Idaho citizens. (First Am. Compl., Dkt. No. 5 at 1.)

Following a court order directing him to do so (Dkt. No. 6), plaintiff filed several declarations supporting his allegation that defendants were Idaho citizens at the time he filed his complaint. (Plaintiff's Declarations, Dkt. Nos. 7-10.) Based upon those declarations, the undersigned preliminarily found that "[s]olely for purposes of screening this action pursuant to 28 U.S.C. § 1915(e)(2) and in light of plaintiff's pro se status, plaintiff's declarations sufficiently support his First Amended Complaint's allegation that diversity jurisdiction exists on the basis of defendants' citizenship in Idaho. However, this finding in no way precludes defendants from moving to dismiss this action for lack of jurisdiction after being served with plaintiff's First Amended Complaint." (Order, Dkt. No. 12 at 3.)

At the Status (Pretrial Scheduling) Conference on April 11, 2013, plaintiff stated on the record that he intended to amend his pleading a third time. Defendants stipulated to permit plaintiff to amend his pleading, but also represented their intention to seek dismissal of any amended pleading.

For the reasons stated on the record during the Status (Pretrial Scheduling) Conference, IT IS HEREBY ORDERED THAT:

1. As defendants have now appeared in this case, and as plaintiff verbally withdrew his "Motion For An Order For The U.S. Marshal To Serve Summons To Federal Probation Officer" (Dkt. No. 22) on the record during the status conference, and such motion is hereby deemed to be withdrawn.

2. Within 30 days of the date of this order, plaintiff shall file a Second Amended Complaint or, alternatively, a statement that he no longer intends to amend his pleading. Also within 30 days of the date of this order, plaintiff shall serve his Second Amended Complaint (or, alternatively, a statement that he does not intend to amend his pleading) upon defendants via U.S. Mail. Plaintiff shall also serve an two uncompleted "Consent to/Decline of Jurisdiction of United States Magistrate Judge" forms (available at Dkt. No. 13-1) upon defendants.

Plaintiff is informed that the court cannot refer to prior pleadings in order to make an amended complaint complete. Eastern District Local Rule 220 requires that an amended complaint be complete in itself. This requirement 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) ("The amended complaint supersedes the original, the latter being treated thereafter as non-existent."). Accordingly, once a plaintiff files an amended complaint, the prior complaint no longer serves any function in the case.

3. Defendants' pending Motion to Dismiss (Dkt. No. 23), which targets plaintiff's First Amended Complaint (First Am. Compl., Dkt. No. 5) is hereby denied without prejudice, and the hearing date for that motion (Notice, Dkt. No. 28) is hereby vacated. Within 30 days after being served with plaintiff's Second Amended Complaint, however, defendants may file another Motion to Dismiss, which may include (but need not be limited to) arguments regarding their state of citizenship and the viability of diversity jurisdiction in this case.*fn2

Alternatively, within 30 days after being served with plaintiff's Second Amended Complaint, defendants may instead file an Answer to plaintiff's amended pleading. If defendants choose to move to dismiss the amended pleading, however, defendants shall properly notice their motion to dismiss for a hearing in accordance with Eastern District Local Rule 230.

4. Within 45 days of the date of this order, each party shall file their own completed "Consent to/Decline of Jurisdiction of United States Magistrate Judge" form. The form is available on the court's electronic docket at Docket Number 13-1.

5. The parties are advised that they may not conduct discovery and that this case will not be scheduled for trial until after the pleadings are finalized and after disputes pertaining to the existence of this court's jurisdiction are resolved.

6. The parties are hereby informed that they are obligated to comply with court orders and the rules of litigation procedure, notwithstanding their status as pro se litigants. Eastern District Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Moreover, Eastern District Local Rule 183(a) provides, in part:

Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on "counsel" by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal . . . or any other sanction appropriate under these Rules.

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."). Case law is in accord that a district court may impose sanctions, including involuntary dismissal of a plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court's orders. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court "may act sua sponte to dismiss a suit for failure to prosecute"); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) ("Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court."), cert. denied, 506 U.S. 915 (1992). Courts can also enter default judgment as a sanction against defendants for their failures to comply with court orders and applicable rules. See, e.g., Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986) (per curiam) ("District courts have inherent power to control their dockets. In the exercise of that power they may impose sanctions including, where appropriate, default or dismissal.")

IT IS SO ORDERED.


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