Ramirez v. Gutierrez
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
Plaintiff, a pro se prisoner, moved for leave to file a First Amended Complaint to correct pleading deficiencies. The Court granted the motion, requiring the amended complaint to be filed by May 28, 2021, and warning that any claims or defendants not re-alleged would be considered waived.
| What the court decided | The model |
|---|---|
Motion for leave to file First Amended Complaint granted“the Court GRANTS Plaintiff leave to file a First Amended Complaint.” | agree with court The court correctly applied the liberal amendment policy of Federal Rule of Civil Procedure 15(a). The order notes that the deadline for amendment had not yet expired, making leave to amend appropriate. The court also correctly cited Rule 16(b)(4) regarding the need for good cause to modify the scheduling order deadline, although it granted the leave within the existing deadline. |
The order itself: sound — The order is procedurally sound. It correctly identifies the governing rule for amendment (Rule 15(a)), acknowledges the scheduling order constraints (Rule 16(b)), and provides the necessary warning regarding the superseding nature of the amended complaint. The citations to Ninth Circuit precedent are accurate and support the warning that un-repled claims are waived.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALIVER RAMIREZ, Case No. 20cv1109-MMA-BLM 12 Plaintiff, ORDER GRANTING PLAINTIFF 13 vs. LEAVE TO FILE FIRST AMENDED COMPLAINT 14 R. GUTIERREZ, et al., 15 Defendants. [Doc. No. 21] 16 17 Plaintiff Aliver Ramirez, a California inmate proceeding pro se, has filed a civil 18 rights complaint pursuant to 42 U.S.C. § 1983. See Doc. No. 1. Plaintiff requests leave 19 to file a First Amended Complaint “to correct any pleading deficiencies, proper 20 presentation of syntax, sentence construction and facts more congruent to the allegations 21 raised against the three (3) defendants in this case.” See Doc. No. 21 at 1. In light of 22 Federal Rule of Civil Procedure 15(a)’s liberal amendment policy and because the time 23 for doing so has not yet expired, see Doc. No. 19, the Court GRANTS Plaintiff leave to 24 file a First Amended Complaint. Plaintiff must file his amended pleading on or before 25 May 28, 2021, the deadline set forth in the operative Scheduling Order, id. § 1, or 26 demonstrate good cause if he fails to do so. See Fed. R. Civ. P. Rule 16(b)(4). 27 The Court advises Plaintiff that his First Amended Complaint must be complete by 28 itself without reference to his original pleading. Defendants not named and any claim not 1 || re-alleged in his amended pleading will be considered waived. See CIVLR 15.1; Hal 2 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 3 || (‘[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 4 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 5 || re-alleged in an amended pleading may be “considered waived if not repled.”). 6 IT IS SO ORDERED. 7 ||DATED: April 22, 2021 Wt whl Me □□□ hphle 8 HON. MICHAEL M. ANELLO 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28