Escamilla Avina v. Patenaude & Felix, APC
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Defendants moved to dismiss the Plaintiff's Second Amended Complaint, but the Court did not rule on the merits of the motion. Instead, the Court ordered the Plaintiff to file a properly demarcated version of the complaint by December 10, 2021, to comply with Local Civil Rule 15.1(c).
| What the court decided | The model |
|---|---|
Order directing Plaintiff to file a properly demarcated amended pleading by December 10, 2021“Accordingly, the Court ORDERS Plaintiff to file on the docket in this proceeding a properly demarcated amended pleading, consistent with Local Civil Rule 15.1(c), by no later than December 10, 2021.” | agree with court The order correctly identifies that the Plaintiff failed to comply with the specific local rule requiring amended pleadings to show differences from the previously dismissed pleading. The remedy of ordering compliance with a deadline is a standard procedural mechanism to ensure the court can efficiently review the amended complaint. |
The order itself: sound — The order is procedurally sound. It correctly applies the local rule (Civ. L.R. 15.1(c)) to the facts presented (failure to provide redlined/underlined differences). It does not reach the merits of the motion to dismiss, which is appropriate given the procedural deficiency. The citation to Ervin is relevant to the potential consequences of non-compliance.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE ESCAMILLA AVINA, Case No. 20-cv-0166-BAS-MDD 12 Plaintiff, ORDER DIRECTING PLAINTIFF 13 v. TO COMPLY WITH LOCAL CIVIL RULE 15.1(c) 14 PATENAUDE & FELIX, APC, et al., 15 Defendants. 16 17 Pending before this Court is Defendants’ Patenaude & Felix, APC and Credit Corp. 18 Solutions, Inc. (“Entity Defendants”)’s motion to dismiss Plaintiff Jorge Escamilla Avina’s 19 Second Amended Complaint (Second Am. Compl. (“SAC”), ECF No. 25). (Mot. to 20 Dismiss, ECF No. 38.) Plaintiff filed the SAC after the Court dismissed without prejudice 21 the lone Fair Debt Collection Practices Act (“FDCPA”) claim lodged against the Entity 22 Defendants in the First Amended Complaint (First Am. Compl., (“FAC”), ECF No. 9). 23 (Order, ECF No. 23.)1 24 Under the local civil rules of this district, “[a]ny amended pleading filed after the 25 granting of a motion to dismiss . . . with leave to amend[] must be accompanied by a version 26 of that pleading that shows—through redlining, underlining, strikeouts, or other similarly 27 1 The Court, however, found that the FAC asserted a plausible FDCPA claim against Defendant 28 | effective typographic methods—how the pleading differs from the previously dismissed 2 pleading.” Civ. L.R. 15.1(c). Here, Plaintiff filed his SAC without any accompanying 3 ||documentation that enables this Court to discern immediately the differences between the 4 ||operative and amended pleadings. Accordingly, the Court ORDERS Plaintiff to file on 5 ||the docket in this proceeding a properly demarcated amended pleading, consistent with 6 || Local Civil Rule 15.1(c), by no later than December 10, 2021. The Court warns that 7 || Plaintiff's failure to do so may result in an order to show cause why the SAC should not 8 dismissed for failure to comply with the local civil rules of this district. See Ervin v. 9 || Cty. of San Diego, No. 14-CV-1142-WQQH-BGS, 2015 WL 641244, at *2 (S.D. Cal. Feb. 10 2015) (denying motion for leave to amend for failure to file demarcated amended 11 || pleading). 12 IT IS SO ORDERED. 13 / 14 || DATED: December 8, 2021 Lin A (Lyphaa. 6 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28