Opinion
No. CIV S-04-2634 LKK DAD P.
August 14, 2006
ORDER
By order filed November 21, 2005, plaintiff's newly substituted counsel was granted fifteen days to file a notice concerning his intention to proceed on the original pro se complaint or to file an amended pleading. No response was filed. In findings and recommendations filed December 13, 2005, the undersigned recommended that defendants Mangis and Sandham be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. No objections were filed.
On January 25, 2006, the court received from the plaintiff in propria persona a letter in which plaintiff states that his attorney "is now M.I.A.," that he had not heard from or seen his attorney since July 26, 2005, and that on January 19, 2006, he had received, marked "Return to Sender," everything he had mailed to his attorney on November 29, 2005. The plaintiff requested an extension of time to respond to the court's November 21, 2005 order concerning service of defendant Mangis. The district judge issued an order holding the pending findings and recommendations in abeyance so that the plaintiff in propria persona could file a motion to return to pro per status or retain other counsel. Within the time granted by the district judge, the plaintiff in propria persona filed objections to the findings and recommendations filed December 13, 2005, along with a request to return to pro per status. Also within the time granted by the district judge, plaintiff's counsel filed a declaration in which he claims that he received no e-mail messages from the court prior to January 26, 2006, when he received a message from defendant Rocha's attorney and then examined the court's docket for this case. Plaintiff in propria persona subsequently filed a notice of withdrawal of his request to return to pro per status.
Plaintiff's counsel is referred to Local Rules 5-133 and 5-134. All attorneys who wish to file documents in the Eastern District of California must be admitted to practice or admitted to appearpro hac vice, and admission to practice in this district includes the requirement that the attorney complete an e-filing registration form and receive a user name and password. Local Rules 5-135(g) 83-180(f). Each time a document is filed in this court, a system-generated Notice of Electronic Filing ("NEF") is sent to all attorneys of record who are registered for electronic service. Local Rule 5-135(a) (g). In this case, the court's docket reflects that an NEF was sent to MRavis@aol.com when plaintiff's motion to substitute attorney was filed on September 21, 2005, and that an NEF was sent to that same electronic address for every document filed thereafter through January 30, 2006. It appears that counsel registered a new electronic address on February 2, 2006, as the docket now shows his address as Ravis90064@yahoo.com. For every document filed in this case beginning with the declaration filed on February 2, 2006, an NEF has been sent to counsel at the yahoo.com address.
Attorneys are encouraged to accept service of documents by electronic means. Local Rule 5-135(g)(2). The court's records do not reflect that plaintiff's counsel in this case opted out of service by electronic means.
The record reflects that all orders filed in this action were properly served on plaintiff's counsel by electronic means. Nevertheless, in the interests of justice, the undersigned will vacate the pending findings and recommendations.
In his declaration filed on February 2, 2006, plaintiff's counsel states that he would like to file an amended complaint. On December 7, 2005, defendant Roche filed an answer to the pro se complaint. The filing of a responsive pleading precludes the filing of an amended complaint except by leave of court or by written consent of the adverse party. Fed.R.Civ.P. 15(a). Plaintiff will be granted thirty days to file a motion for leave to amend, together with a proposed amended complaint. Plaintiff's motion must be noticed for hearing before the undersigned on a regularly scheduled law and motion calendar, and the parties shall brief the motion in accordance with Local Rule 78-230.
Accordingly, IT IS HEREBY ORDERED that:
1. This court's findings and recommendations filed December 13, 2005, are vacated;
2. Plaintiff's request for substitution filed February 13, 2006, is deemed withdrawn by the notice filed February 17, 2006;
3. Plaintiff's counsel is granted thirty days to file and serve a noticed motion for leave to amend, accompanied by a proposed amended complaint; and
4. The Clerk is directed to serve a courtesy copy of this order on plaintiff Troy Magarrell in propria persona at the address shown on the document he filed on February 17, 2006.