Bruce E Krell v. City and County of San Francisco et al

Northern District of California, cand-4:2015-cv-01833

ORDER striking {{20}} Amended Complaint filed by Bruce E Krell as improperly filed; ORDER TO SHOW CAUSE to Plaintiff to explain why Defendant&#039;s motions {{8}} & {{9}} should not be granted as unopposed. Show Cause Response due by 8/10/2015. <br >Motions terminated as moot: {{21}} MOTION to Dismiss Amended Complaint filed by City & County San Francisco, {{22}} MOTION to Strike Plaintiffs State Law Cause of Action from Amended Complaint and for Attorneys Fees Under California Code of Civil Procedure &#167; 425.16 filed by City & County San Francisco. Signed by Judge Kandis A. Westmore on 8/3/2015. (kawlc1, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 BRUCE E KRELL, 7 Case No. 15-cv-01833-KAW Plaintiff, 8 ORDER STRIKING PLAINTIFF'S v. AMENDED COMPLAINT; ORDER 9 TERMINATING DEFENDANT'S CITY & COUNTY SAN FRANCISCO, et MOTION TO STRIKE AND MOTION 10 al., TO DISMISS; ORDER TO SHOW CAUSE 11 Defendants. Re: Dkt. Nos. 20, 21, 22 12 Northern District of California United States District Court 13 On April 23, 2015, Plaintiff Bruce E. Krell filed a complaint against the City and County 14 of San Francisco alleging that he was subjected to harassment while operating a parking lot. On 15 June 1, 2015, Defendant filed a motion to dismiss and a motion to strike. Thereafter, the parties 16 stipulated to extend the briefing schedule and to continue the hearing date on both motions. 17 Pursuant to the stipulation, Plaintiff's opposition was due on July 27, 2015. (Dkt. No. 16.) 18 On July 27, 2015, Plaintiff instead filed an amended complaint. (Dkt. No. 20.) Under Rule 19 15(a)(1)(B), a party may amend its pleading once as a matter of course within 21 days of being 20 served with a motion under Rule 12(b). The amended complaint, however, was filed more than 21 21 days after service of the 12(b)(6) motion. Therefore, Plaintiff was required to either obtain 22 Defendant's consent to file an amended complaint or obtain leave of court prior to filing the 23 amended complaint. Fed. R. Civ. P. 15(a)(2). Plaintiff has done neither. 24 ORDER STRIKING THE FIRST AMENDED COMPLAINT 25 Accordingly, the amended complaint (Dkt. No. 20) is stricken, such that the operative 26 complaint is the initial complaint. Therefore, Defendant's pending motion to dismiss the amended 27 complaint (Dkt. No. 21) and motion to strike the amended complaint (Dkt. No. 22) are 28 TERMINATED as moot. 1 ORDER TO SHOW CAUSE 2 The hearing date on the motions to dismiss and strike the initial complaint (Dkt. Nos. 8 & 3 9) remain on the Court's September 3, 2015 calendar. 4 As Plaintiff has failed to opposed both motions, by no later than August 10, 2015, the 5 Court orders Plaintiff to (1) show cause why the motions should not be granted for failure to file 6 oppositions, and (2) file either oppositions to both motions or statements of non-opposition to both 7 motions. The response to this order to show cause and the oppositions should be filed as separate 8 documents. Failure to timely file all three documents will result in the granting of both motions. 9 See Judge Westmore's General Standing Order ¶ 22 ("The failure of the opposing party to file a 10 memorandum of points and authorities in opposition to any motion shall constitute consent to the 11 granting of the motion"). 12 The Court is aware that a settlement conference is scheduled on September 4, 2015. Thus, Northern District of California United States District Court 13 the Court is willing to entertain any stipulations that may obviate some or all of Plaintiff's 14 obligations in the order to show cause. 15 FUTURE AMENDMENT TO PLEADINGS 16 Should Plaintiff still wish to file an amended complaint, the Court directs him to meet and 17 confer with Defendant in an attempt to gain its consent and avoid unnecessary motion practice. 18 See Fed. R. Civ. P. 15(a)(2). Any stipulation should address the outstanding motions to dismiss 19 and strike the initial complaint. If Plaintiff is unable to procure a stipulation, he must obtain leave 20 of court prior to filing an amended complaint. Id. 21 IT IS SO ORDERED. 22 Dated: August 3, 2015 __________________________________ 23 KANDIS A. WESTMORE 24 United States Magistrate Judge 25 26 27 28 2