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Johnson v. Reis

United States District Court, E.D. California
Dec 2, 2010
NO. CIV. S-10-1777 LKK/DAD (E.D. Cal. Dec. 2, 2010)

Opinion

NO. CIV. S-10-1777 LKK/DAD.

December 2, 2010


ORDER


On July 8, 2010, plaintiff filed a complaint against numerous defendants concerning disability accessibility of their businesses. (ECF No. 1). Plaintiffs' process server testified that he served defendant Friday Ave Copeland, LLC on September 6, 2010 and that he served defendant Tahoe Friday LLC on August 26, 2010. (ECF Nos. 10-11). Plaintiff was unable to serve all other defendants. (ECF No. 12). On September 15, 2010, defendant Tahoe Friday LLC filed an answer to this complaint. No attorney appeared on behalf of Tahoe Friday LLC. On September 22, 2010, defendant Friday Ave Copeland, LLC filed a response to the summons expressing that Friday Ave Copeland, LLC was not an owner or business operator at the time referenced in the complaint. (ECF No. 13). No attorney appeared on behalf of Friday Ave Copeland, LLC. Pursuant to E.D. Cal. Local Rule 83(a), "A corporation or other entity may appear only by an attorney." (emphasis added). Both Tahoe Friday LLC and Friday Ave Copeland, LLC are limited liability corporations, yet are not represented by counsel. For this reason, the Court strikes Tahoe Friday LLC's answer to the original complaint and Friday Ave Copeland, LLC's response to the summons.

On October 20, 2010, plaintiff filed a request for a continuance of a status conference on the grounds that he will be filing a first amended complaint. On October 25, 2010, the court granted plaintiff's request. On November 13, 2010, plaintiff filed an amended complaint. (ECF No. 19). This complaint only names a new defendant, Sandree, LLC. (Id.). For this reason, the court instructs the Clerk of Court to terminate Tahoe Friday LLC and Friday Ave Copeland, LLC as parties to this action. The court notes that nothing in this order shall indicate that the first amended complaint relates back to the original complaint.

The Court construes the request to continue the status conference as a request for leave to file an amended complaint, which was granted. The Court, however, cautions plaintiff that pursuant to Fed.R.Civ.P. 15(a), plaintiff is only entitled to amendment as a matter of course if the amended complaint is filed twenty-one days after service of the complaint or twenty-one days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier. Other amendments are only permitted with the opposing party's written consent or leave of the court. Id. Thus, when seeking to file an amended complaint after the time for amendment as a matter of course has passed, a plaintiff must first either move for leave of the court or seek the written consent of all opposing counsel.

Thus, the Court ORDERS as follows:

(1) Tahoe Friday LLC's answer to the original complaint (ECF No. 8) and Friday Ave Copeland, LLC's response to the summons (ECF No. 13) are STRICKEN.
(2) Tahoe Friday LLC and Friday Ave Copeland, LLC are TERMINATED from the instant action.
(3) The Clerk of Court shall issue summons for the first amended complaint.

IT IS SO ORDERED.

DATED: December 1, 2010.


Summaries of

Johnson v. Reis

United States District Court, E.D. California
Dec 2, 2010
NO. CIV. S-10-1777 LKK/DAD (E.D. Cal. Dec. 2, 2010)
Case details for

Johnson v. Reis

Case Details

Full title:SCOTT N. JOHNSON, Plaintiff, v. AARON REIS, et al., Defendants

Court:United States District Court, E.D. California

Date published: Dec 2, 2010

Citations

NO. CIV. S-10-1777 LKK/DAD (E.D. Cal. Dec. 2, 2010)