Opinion
No. CIV. S-06-0050 WBS KJM.
August 18, 2006
MEMORANDUM AND ORDER
The Complaint in this action contains several causes of action against defendants based on their conduct during a child welfare investigation at plaintiffs' home. On July 5, 2006, this court held that defendants were entitled to immunity under state law and accordingly dismissed plaintiffs' state law claims. Plaintiffs have since filed a first amended complaint in hopes of reinstating those claims. Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants County of San Joaquin, Gerardo Flores, Carol Cabral, Melissa Torres, and Ronald Brown again move to dismiss plaintiffs' state law claims, arguing, inter alia, that plaintiffs lacked the requisite permission to file an amended complaint.
Indeed, the court explicitly advised plaintiffs in the scheduling order that they would need the court's permission to file an amended complaint. (May 22, 2006 Order (stating that "[i]f as a result of [defendants' then-pending motion to dismiss], the court grants plaintiff leave to amend her complaint, plaintiff may do so pursuant to such order"); id. ("Other than as stated above, no further joinder of parties or amendments to pleadings is permitted except with leave of court, good cause having been shown under Fed.R.Civ.P. 16(b).").)
Recognizing that they failed to follow these procedures before filing their first amended complaint, plaintiffs have filed a statement of non-opposition to defendants' motion to dismiss in which they implicitly concede that their proposed first amended complaint is not yet the operative pleading in this case.
IT IS THEREFORE ORDERED that plaintiff's first amended complaint be, and the same hereby is, STRICKEN;
AND IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiffs' fifth, sixth, seventh, and eighth claims of the first amended complaint be, and the same hereby is, DENIED as moot, WITHOUT PREJUDICE to defendants' right to renew the motion if plaintiffs properly notice a motion and are granted leave to amend their complaint.