Opinion
No. 2:11-cv-2186 GEB KJN PS.
September 8, 2011
ORDER
Plaintiff is proceeding without counsel in this action. Plaintiff filed his original complaint (Dkt. No. 1) on August 17, 2011, and his First Amended Complaint (Dkt. No. 5) on August 18, 2011. Plaintiff filed his First Amended Complaint as a matter of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).
This action was referred to the undersigned pursuant to Eastern District Local Rule 302(c)(21). (Dkt. No. 4.)
On August 22, 2011, plaintiff filed a "Second Amended Complaint." (Dkt. No. 7.) Because that filing constituted a third version of his pleading, and because plaintiff had not sought leave of court with respect to such a pleading, on August 24, 2011, the undersigned issued an order striking that pleading sua sponte. (Dkt. No. 9.) That order also reminded plaintiff of his obligations to comply with the Eastern District Local Rule 137(c) and Federal Rule of Civil Procedure 15(a)(2). (Id. at 3.)
On August 30, 2011, plaintiff filed a "Motion to Amend Complaint." (Dkt. No. 11.) Plaintiff properly filed a "[Proposed] Second Amended Complaint" in connection therewith. (Dkt. No. 12.) However, plaintiff neglected to set the motion for a hearing date, and accordingly, his filing is in violation of Local Rule 230(b).
Plaintiff initiated this action on August 17, 2011. (Dkt. No. 1.) To date, nothing on the court's electronic docket suggests that plaintiff has completed service of any of his various pleadings upon any of the eleven named defendants. The court has no way of ascertaining whether any defendants have been served, and it is possible that some or all of the defendants may have objections to plaintiff's amending his pleading yet again. Plaintiff represents that "[n]o Defendant has filed an answer to the Plaintiff's stricken complaint," (Dkt. No. 11 at 4), but plaintiff has not clarified whether any defendant has yet been served with that pleading (or any other versions of his pleading) in this case. Similarly, while plaintiff frames his proposed amended pleading as "not substantially different from the original complaint in regard to the alleged violation of rights or the relief demand[ed]" and states that his "objective was to correct typographical errors and state the facts with more clarity, without prejudice to any of the Defendants," the court is not prepared to assume that the requested amendment would not prejudice any defendant. (Id. at 3-4 (emphasis in original).)
Given plaintiff's failure to properly notice his Motion to Amend the Complaint (Dkt. No. 11) and the court's inability to ascertain from the docket whether plaintiff has served any of his pleadings upon the named eleven defendants in this action, on or before September 23, 2011, plaintiff is HEREBY ORDERED TO:
1. File a signed declaration (the "Declaration") describing:
(a) which defendants, if any, plaintiff has served with process in this case;
(b) what version(s) of plaintiff's pleadings, if any, each such defendant was served;
(c) the date(s) of such service; and
(d) the method(s) of service used.
If, on the other hand, plaintiff has not yet completed service upon any defendant in this action, plaintiff's Declaration should clarify that service has not yet occurred. The content of plaintiff's Declaration will determine whether the undersigned takes the pending Motion to Amend the Complaint (Dkt. No. 11) under submission upon the briefs and without a hearing in accordance with Local Rule 230(g), or, alternatively, sets the motion for a hearing date so as to permit served defendants to timely oppose that motion.
IT IS SO ORDERED.
DATED: September 7, 2011