Opinion
1:21-cv-01348-NONE-SAB
10-13-2021
MICHAEL W. WATKINS, Plaintiff, v. WILLIAM WESTIN, et al., Defendants.
ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (ECF NOS. 25, 26, 27)
Michael Watkins (“Plaintiff”), proceeding in this matter pro se, initiated this action on April 30, 2021, in the United States District Court for the Eastern District of Tennessee in Knoxville. (ECF No. 1.) On July 28, 2021, Defendants William Westin, Edward Miliam and Joe Banuelos moved to dismiss for lack of personal jurisdiction and improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2) and (3). (ECF No. 11.) On August 26, 2021, the Tennessee Court granted Defendants' motion and the case was subsequently transferred to the Eastern District of California on September 9, 2021. (ECF Nos. 14, 15, 16.)
On September 29, 2021, Plaintiff filed a “first amended complaint.” (ECF No. 25.) The amended complaint seeks to add Maryann Watkins, also proceeding pro se, as a Plaintiff, and the State of California as a Defendant. The caption of the filing indicates it is an amended complaint filed “as a matter of course” pursuant to Federal Rule of Civil Procedure 15. (Id. at 1.) On October 8, 2021, noting the time to file an amended complaint “as a matter of course” under Rule 15(a)(1) had expired, the Court construed the filing as a motion for leave to amend, and ordered Defendants to file a response to the September 29, 2021 filing within seven (7) days. (ECF No. 26.)
Rule 15 provides that a party may amend the party's pleading once as a matter of course within twenty-one days of serving it or within twenty-one days after service of a responsive pleading or twenty-one days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2).
In this action, Defendants filed a motion to dismiss on July 28, 2021. (ECF No. 11.) The proof of service indicates the motion was served on Plaintiff the same day. (ECF No. 11-1 at 3.) Therefore, Plaintiff was permitted to amend his complaint once “as a matter of course” within twenty-one days after service of that motion. Fed.R.Civ.P. 15(a)(1)(B)); see also Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (finding plaintiff had right under Rule 15(a)(1)(B) to amend once within twenty-one days after service of defendants' motion to dismiss under Rules 12(b)(6) and 12(e)). Thus, any amended complaint filed as a matter of course under Rule 15(a)(1) was required to be filed by August 18, 2021.
On October 11, 2021, Defendants William Westin, Edward Miliam and Joe Banuelos filed a motion to dismiss the first amended complaint. (ECF No. 27.) The filing indicates that as for a response to the Court's October 8, 2021 order, “Defendants do not oppose the filing of Mr. Watkin's First Amended Complaint because it does not cure any of the deficiencies, which are raised through the instant Motion to Dismiss, contained in the original complaint.” (ECF No. 27 at 9 n.1.) The filing acknowledges that the first amended complaint contains a new plaintiff and a new defendant, however notes “[a]t the time of preparing the instant motion, newly added Plaintiff Maryann Watkins has not personally served her summons and complaint upon defendants, and Plaintiff Michael W. Watkins has not served newly named defendant “State of California.” (ECF No. 27 at 11.) The filing again reiterates that Defendants do not object to the first amended complaint being deemed the operative pleading in this action as the motion to dismiss is applicable to either the original complaint or first amended complaint. (ECF No. 27 at 11 n.2.) As such, the Court accepts the filing as both a statement of non-opposition to Plaintiff's motion to amend, and a motion to dismiss the amended complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs September 29, 2021 filing (ECF No. 25), construed as a motion for leave to amend, is GRANTED as unopposed; and
2. This action shall proceed on Plaintiffs first amended complaint filed September 29, 2021 (ECF No. 25).
The Court makes no other findings or order concerning the motion to dismiss filed October 11, 2021, by Defendants William Westin, Edward Miliam and Joe Banuelos (ECF No. 27), nor the fact the first amended complaint seeks to add additional parties, and the motion to dismiss will be addressed by separate order by the District Judge.
IT IS SO ORDERED.