Opinion
22-cv-02616-JSW
01-18-2024
MESSIAH MESSIAH, Plaintiff, v. D. GARCIA LARA, et al., Defendants.
ORDER DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; DENYING MOTION FOR EXTENSION OF TIME; VACATING BRIEFING SCHEDULE; GRANTING IN PART MOTION FOR REPRODUCTION; SETTING SCHEDULE FOR SECOND AMENDED COMPLAINT AND DISPOSITIVE MOTIONS RE: DKT. NOS. 37, 39, 40
JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE
Plaintiff filed a motion for leave to file a second amended complaint “SAC”. The proposed SAC attached does not coherently list the factual allegations, the causes of action, the defendants, and the relief sought. Consequently, leave to file it is DENIED. If Plaintiff wants to file an SAC, he must, within 28 days of the date this order is filed, file: (1) a new motion for leave to amend and (2) attach a proposed SAC using the Court's form civil rights complaint. The proposed SAC must: include the caption and civil case number used in this order (No. C 22-2616 JSW (PR)) and the words “SECOND AMENDED COMPLAINT” on the first page; clearly set forth any factual allegations; numerically list all of the defendants and their locations; clearly identify any newly-added defendants as new; numerically list each cause of action with a brief; identify each defendant against whom he brings each claim; and specify the relief sought; and attach any exhibits or additional pages to the form complaint. If he wishes to include any previously dismissed claims or defendants, the motion for leave to amend must provide an explanation for why he is entitled to do so. The SAC, if he is granted leave to file it, will completely replace the original and first amended complaints and nothing from those prior complaints will remain in the case. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from the prior complaints by reference by reference; he must include in his amended complaint all the claims he wishes to pursue. If Plaintiff does not move to file an SAC within the designated time and in accordance with this order or show good cause why not, he will not be permitted to file an SAC, and this case will proceed based upon the operative First Amended Complaint.
The briefing schedule on the dispositive motions previously ordered is VACATED. Defendants' motion for an extension of time is therefore DENIED as unnecessary. Plaintiff's motion for “reproduction” of documents is GRANTED IN PART: the Clerk has sent Plaintiff a copy of his proposed SAC and exhibits without charge as a one-time courtesy due to limited court resources.
1. Defendant shall file an answer in accordance with the Federal Rules of Civil Procedure.
2. In order to expedite the resolution of this case:
a. No later than 91 days from the date this order is filed, the remaining defendants shall file a motion for summary judgment or other dispositive motion. If defendants are of the opinion that this case cannot be resolved by such a motion, they shall so inform the court prior to the date the motion is due. All papers filed with the court shall be promptly served on the plaintiff.
b. Plaintiff's opposition to the dispositive motion, if any, shall be filed with the court and served upon defendants no later than 28 days from the date of service of the motion. Plaintiff must read the attached page headed “NOTICE -- WARNING,” which is provided to him pursuant to Rand v. Rowland, 154 F.3d 952, 953-954 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
c. Defendants shall file a reply brief no later than 14 days after the date of service of the opposition.
d. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the court so orders at a later date.
e. Along with any summary judgment motion, defendants shall file proof that they served plaintiff the Rand warning at the same time they served him with the motion. Failure to do so will result in the summary dismissal of the motion.
3. All communications by the plaintiff with the court must be served on defendants, or defendants' counsel once counsel has been designated, by mailing a true copy of the document to defendants or their counsel.
4. Discovery may continue in accordance with the Federal Rules of Civil Procedure.
5. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address and must comply with the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.