Opinion
23cv1461-JES (BLM)
01-11-2024
JENNY SANDOVAL, Plaintiff, v. UNITED STATES CUSTOM AND BORDER PROTECTION; MANUEL ACEVEDA; PAUL GARDIA; and Does 1-100, inclusive, Defendants.
ORDER STRIKING AMENDED COMPLAINT
[ECF NO. 6]
Honorable James E. Simmons, Jr. United States District Judge
On November 30, 2023, Defendant the United States of America filed a motion to dismiss. ECF No. 5. On January 10, 2024, Plaintiff filed a First Amended Complaint (“FAC”). ECF No. 6.
Federal Rule of Civil Procedure 15 governs amendment of pleadings. Under Rule 15(a), a plaintiff may amend a pleading as a matter of course either “21 days after serving it” or “if the pleading is one to which a responsive pleading is required, . . . 21 days after service of a motion under Rule 12(b), (e), or (f) ....” Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2).
Plaintiff's filing of the FAC is improper. The original complaint was filed on August 8, 2023, so the timing for amending as a matter of course under Rule 15(a)(1)(A) has long passed. Defendant filed the Motion to Dismiss under Rule 12 on November 30, 2023, making the deadline to amend as a matter of course under Rule 15(a)(1)(B) to be December 21, 2023. The FAC was not filed until January 10, 2024, twenty days after the deadline passed. Finally, Plaintiff did not seek leave of court to file the FAC, nor is there any indication that the opposing party has provided written consent to file an amended pleading. Fed.R.Civ.P. 15(a)(2).
According, the Court STRIKES the FAC from the docket as improperly filed. See Cooley v. Marshal, No. 2:09-CV-00559-RLH, 2011 WL 3240453, at *3 (D. Nev. July 28, 2011) (striking sua sponte amended complaint that was not filed within deadline under Rule 15(a)). The Court also STRIKES the associated Summons that was issued. ECF No. 7.
Defendant's Motion to Dismiss the original complaint remains pending before the Court. ECF No. 5. The Court finds the matter appropriate for disposition without oral argument and takes the matter under submission on the papers pursuant to Civil Local Rule7.1(d)(1).
IT IS SO ORDERED