Opinion
Case No.: 3:16-cv-02680-GPC-AGS
11-29-2016
CLAYTON DEL THIBODEAU, Pro Se, Plaintiff, v. ADT SECURITY SERVICES, a/k/a/ ADT HOLDINGS, INC., Defendant.
ORDER:
(1) DIRECTING PLAINTIFF TO FILE COMPLETE AMENDED COMPLAINT BY DECEMBER 12, 2016 [ECF No. 12];
(2) DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS [ECF No. 5]
(3) VACATING HEARING DATE SET FOR JANUARY 13, 2017
On September 27, 2016, Plaintiff Clayton Del Thibodeau ("Plaintiff"), pro se, filed a Complaint against Defendant ADT LLC, d/b/a ADT Security Services ("Defendant"), in San Diego Superior Court. (Dkt. No. 1.) Defendant removed the case to this Court on October 28, 2016. (Id.) On November 4, 2016, Defendant filed a motion to dismiss Plaintiff's Complaint. (Dkt. No. 5.) A hearing date on Defendant's motion was scheduled for January 13, 2017.
On November 28, 2016, Plaintiff filed, nunc pro tunc, a document entitled "Additional Causes of Action (No. Eleven through No. Nineteen) Amended to Existing Complaint." (Dkt. No. 12.) Courts "liberally construe pleadings by pro se litigants." Aguasin v. Mukasey, 297 F. App'x 706, 707 (9th Cir. 2008). As such, the Court construes Plaintiff's document as an Amended Complaint. Plaintiff filed this document within 24 days of service of Defendant's motion to dismiss by mail, see Fed. R. Civ. P. 5(b)(2)(C); 6(d), and can thus amend his Complaint as a matter of course, see 15(a)(1)(B).
However, the Court notes that Plaintiff's Amended Complaint includes only his eleventh through nineteenth causes of action and omits the first ten causes of action in his original Complaint. (Dkt. No. 12 at 1.) Plaintiff is cautioned that the Amended Complaint must be complete by itself without reference to his original Complaint, comply with Federal Rule of Civil Procedure 8(a), and that any claim not re-alleged will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) ("[A]n amended pleading supersedes the original."); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be "considered waived if not repled."). If Plaintiff wishes to continue pursuing his first ten causes of action, originally filed in state court, he must file a complete Amended Complaint with all nineteen causes of action no later than December 12, 2016.
Because Defendant's motion to dismiss was based upon Plaintiff's original Complaint, the Court DENIES AS MOOT Defendant's motion to dismiss (Dkt. No. 5) and VACATES the hearing date set for January 13, 2017.
IT IS SO ORDERED. Dated: November 29, 2016
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge