Opinion
No. 2:19-cv-01564-TLN-CKD (PS)
12-31-2019
MARY A. NELSON ROGERS, Plaintiff, v. PAUL J. ENJALRAN, et al., Defendants.
ORDER
(ECF No. 21)
Presently pending before the court is plaintiff's second motion to amend her complaint. (ECF No. 21.) For the reasons set forth below, the court grants plaintiff's motion.
Plaintiff's motion is entitled "motion . . . to file related action and to add defendants." The court treats plaintiff's motion as one to file a Second Amended Complaint to add defendants. --------
Plaintiff's First Amended Complaint only named two defendants, Paul Enjalran and Kamal Kaur, omitting several defendants named in the original complaint. (Compare ECF No. 1 at 2-7 with ECF No. 18 at 2-4.) On December 17, 2019, the court granted plaintiff's motion to amend her complaint as a matter of course pursuant to Federal Rule of Civil Procedure 15. (ECF No. 19.) The court additionally instructed plaintiff that her "amendment as a matter of course renders [her] original complaint non-existent" (ECF No. 19), and ordered plaintiff to file a response explaining why the court should not dismiss, pursuant to Federal Rule of Civil Procedure 41, defendants that plaintiff named in the original complaint but not in the amended complaint. (Id.)
Plaintiff's present motion seeks to add the formerly-named defendants as well as Marcie Frost and Tim Behrens. (ECF No. 21 at 2.) It appears that plaintiff did not name these individuals in her First Amended Complaint because she alleges they cannot be liable under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in contrast to the defendants she did name in her First Amended Complaint. (ECF No. 21-1.) Presumably, plaintiff is requesting the court to refer back to the prior complaint to keep the causes of action against the unnamed defendants alive. However, "a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint." London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981).
In the interest of justice, and to allow plaintiff's claims to be heard on the merits, the court grants plaintiff's motion to file a Second Amended Complaint. See Fed. R. Civ. P. 15(a)(2). Plaintiff is again cautioned that her Second Amended Complaint will render her former complaint non-existent, and "Defendants not named or served and all claims not re-alleged in the [Second] Amended Complaint will be deemed to have been waived." Lewis v. Mitchell, 416 F. Supp. 2d 935, 947 (S.D. Cal. 2005) citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987).
Additionally, for sake of clarity, the hearing on defendant Paul Enjalran's motion to dismiss (ECF No. 20) will remain set for January 22, 2020. Even though Enjalran's motion addresses the First Amended Complaint, the court finds that judicial economy, potential delay, and potential prejudice to Enjalran weigh in favor of allowing his motion to proceed. If any material change in plaintiff's allegations against Enjalran appear in her Second Amended Complaint, the parties can address them at the hearing.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to file and amended complaint (ECF No. 21) is GRANTED;///// /////
2. Plaintiff's new complaint shall be entitled "Second Amended Complaint" and be filed by January 15, 2020; and
3. Plaintiff's Second Amended Complaint shall include all defendants and claims she seeks to allege in this action, as outlined above.
IT IS SO ORDERED Dated: December 31, 2019
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
16. roge. 1564