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Oglesby v. McEwen

United States District Court, Ninth Circuit

August 22, 2013

JESSE FRANK OGLESBY, Plaintiff,
v.
LELAND MCEWEN, et al., Defendants.

ORDER (1) DENYING PLAINTIFF'S REQUEST FOR AN EXTENSION OF TIME TO FILE OBJECTIONS TO REPORT AND RECOMMENDATION, (2) ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION TO DISMISS AND GRANTING PLAINTIFF LEAVE TO FILE THIRD AMENDED COMPLAINT, (3) DENYING AS MOOT PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE'S JULY 12, 2013 ORDER AND (4) DENYING AS MOOT DEFENDANTS' REQUEST FOR AN EXTENSION OF MOTION CUT-OFF DATE [Docket Nos. 51, 55, 56, 57]

DANA M. SABRAW, District Judge.

This case comes before the Court on (1) the Report and Recommendation ("R&R") of the Magistrate Judge to grant the motion to dismiss Plaintiff's Second Amended Complaint filed by Defendants Gray, Belavich, Crow, Banaga-Bugarin, Zamora and McEwen, (2) Plaintiff's request for an extension of time to file objections to the R&R, (3) Plaintiff's Objection to the Magistrate Judge's July 12, 2013 Order and (4) Defendants' request for an extension of the motion cut-off date.

Plaintiff's Request for an Extension of Time to File Objections to the R&R

The Magistrate Judge gave the parties until August 21, 2013, to file objections to the R&R. On August 12, 2013, Plaintiff filed a request for an extension of time to file objections on the ground that he recently received over 2, 000 pages of documents from Defendants, and he would not have time to review those documents and formulate his objections by the August 21, 2013 deadline. However, Defendants' motion to dismiss is directed to the pleadings, and Plaintiff fails to explain how his review of the documents would affect what is already alleged in the Second Amended Complaint. Accordingly, the Court denies Plaintiff's request for an extension of time to file objections to the R&R. R&R

Having reviewed de novo the Magistrate Judge's R&R, this Court adopts the Magistrate Judge's recommendation to grant Defendants' motion to dismiss the Second Amended Complaint. In accordance with the R&R, the Second Amended Complaint is dismissed without prejudice, and Plaintiff is granted leave to file a Third Amended Complaint that cures the pleading deficiencies set out in the R&R. Plaintiff is cautioned that if his Third Amended Complaint does not cure the deficiencies set out in the R&R, his case will be dismissed with prejudice and without leave to amend. The Third Amended Complaint shall be filed on or before September 23, 2013. This deadline should provide Plaintiff with sufficient time to review the records referenced above and incorporate any additional facts contained therein into a Third Amended Complaint.

In light of this ruling, the Court hereby vacates the February 11, 2013 scheduling order and all amendments thereto.[1] The Magistrate Judge shall issue a new scheduling order after Plaintiff files his Third Amended Complaint and Defendants file their Answers thereto. In setting new dates, the Magistrate Judge should consider the time spent on the case thus far, and set dates accordingly.

IT IS SO ORDERED.


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