United States District Court, E.D. California
ORDER GRANTING PLAINTIFF’S MOTION TO AMEND AND
DENYING DEFENDANT’S MOTION TO DISMISS DOC. NOS. 9,
matter is before the court on plaintiffs July 5, 2016 motion
to amend the complaint and on defendant’s June 1, 2016
motion to dismiss. (Doc. Nos. 9, 15.) For the following
reasons, the court will grant plaintiffs motion to amend and
deny defendant’s motion to dismiss.
March 9, 2016, plaintiff filed a complaint naming Martin Bans
as the defendant. (Doc. No. 1.) Therein, plaintiff asserts
one cause of action under 42 U.S.C. § 1983, alleging
violation of his First Amendment free speech rights.
(Id.) Plaintiff seeks economic and non-economic
damages, punitive damages, and attorney’s fees and
costs. (Id. at 10-11.)
1, 2016, defendant filed a motion to dismiss plaintiffs
complaint. (Doc. No. 9.) On June 26, 2016, plaintiff filed a
First Amended Complaint (“FAC”). (Doc. No. 12.)
On June 13, 2016, the court filed an order striking the FAC
as untimely under Rule 15(a)(1) of the Federal Rules of Civil
Procedure. (Doc. No. 14.) On July 5, 2016, plaintiff filed an
opposition to defendant’s motion to dismiss as well as
another motion to amend the complaint. (Doc. No. 15.) On
July 12, 2016, defendant filed a reply to plaintiff’s
opposition and motion to amend. (Doc. No. 16.)
opposition to defendant’s motion to dismiss and in his
renewed motion to amend, plaintiff argues that his FAC was
timely filed, and that defendant’s motion to dismiss
should be denied as moot. (Doc. No. 15.)
Federal Civil Procedure Rule 15, a party “may amend its
pleading once as a matter of course” if they do so
“21 days after service of a motion under Rule
12(b).” Fed.R.Civ.P. 15(a)(1). A party may also amend
its pleading “with the opposing party’s written
consent or the court’s leave.” Fed.R.Civ.P.
Civil Procedure Rule 6 specifies the method for computing
time periods specified in the rules. Under Rule 6, time
periods stated in days require “count[ing] every day,
including intermediate Saturdays, Sundays, and legal
holidays.” Fed.R.Civ.P. 6(a)(1)(B). If the last day is
a Saturday, Sunday, or legal holiday, “the period
continues to run until the end of the next day that is not a
Saturday, Sunday, or legal holiday.” Fed.R.Civ.P.
6(a)(1)(C). However, when a party must act within a specified
time after service and service is made under Rule 5(b)(2)(E),
“3 days are added after the period would otherwise
expire under Rule 6(a).” Fed.R.Civ.P. 6(d). Rule
5(b)(2)(E) governs service by electronic means, and specifies
that service may properly be made “by electronic means
if the person consented in writing-in which event service is
complete upon transmission.” Fed.R.Civ.P. 5(b)(2)(E).
Local Rules of this court address service of electronic
documents. Under Local Rule 135, service through the
court’s CM/ECF system “constitutes service
pursuant to Fed.R.Civ.P. 5(b)(2)(E). Local Rule 135(a).
Attorneys registered to practice in the Eastern District are
considered to have consented to electronic service unless
they opt out. Local Rule 135(g).
asserts that his FAC was timely filed because under Federal
Civil Procedure Rule 6(d), a party has three additional days
if service of the triggering document is electronic. (Doc.
No. 15 at 2-3.) Since the triggering document was the
defendant’s electronically-served motion to dismiss,
plaintiffs argue, the Rule 6(d) extension should apply,
rendering their FAC timely. (Id.)
has replied to plaintiff’s opposition and motion to
amend by filing a statement of non-opposition to
plaintiff’s motion to amend. (Doc. No. 16.)
motion to dismiss was filed and served through the
court’s CM/ECF system on June 1, 2016. (Doc. No. 9.)
Twenty one days from June 1, 2016, excluding the date of
service, is June 22, 2016. Rule 6(d) requires an additional
three days be added. June 25, 2016 constitutes the requisite
three calendar days. However, June 25, 2016 was a Saturday,
and is not counted under Rule 6(a). The window for filing an
amended complaint as of right therefore ended on June 27,
2016. Accordingly, plaintiff’s FAC, filed on June 26,
2016 (Doc. No. 12), was timely and does not need court
approval under Rule 6(a). See, e.g., Fox v.
County of Sacramento, No. 2:11-cv-00419 JAM-KJN, 2011 WL
4458967, at *2 n.2 (E.D. Cal. Sept. 23, 2011) (finding that
plaintiff’s amended complaint, filed twenty five days
after defendant’s motion to dismiss, was timely filed
under Rules 15(a)(1)(B) and Rule 6(d)). Accordingly,
plaintiff’s motion to amend will be
plaintiff’s FAC will supersede the original complaint
that defendants have moved to dismiss, defendant’s
motion to dismiss has been rendered moot. See Hughes v.
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