Smith v. Brangwynne

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA DENNIS SMITH, Case No.: 19cv620-CAB-AHG 12 Plaintiff, ORDER DENYING WITHOUT v. PREJUDICE MOTION FOR MORE DEFINITE STATEMENT [Doc. No. DEPUTY K. BRANGWYNNE, et al., 10] AND SETTING DEADLINE FOR 15 Defendant. FILING OF SECOND AMENDED COMPLAINT On October 24, 2019, Defendants filed a motion for more definite statement. [Doc. No. 10.] On December 2, 2019, in granting Plaintiff an extension of time to oppose Defendants’ motion, the Court ordered Plaintiff to file either an opposition to the motion or a Second Amended Complaint (“SAC”). [Doc. No. 14.] On December 20, 2019, Plaintiff filed Plaintiff’s More Definite Statement with Declaration in Support Thereof [Doc. No. 23], which is filed as a response to the motion but is in the format of a complaint. Therefore, it appears that Plaintiff is intending to file an SAC. However, the document he has filed [Doc. No. 23] only has one cause of action, while the First Amended Complaint (“FAC”) [Doc. No. 6] has three causes of action.

In an abundance of caution, the Court will provide Plaintiff with one final opportunity to file an SAC. Plaintiff shall file an SAC by January 31, 2020. Plaintiff is || cautioned that the SAC must be complete in itself without reference to his original || pleading. Defendants not named and any claims not re-alleged in the Second Amended ||Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 4 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an ||amended pleading may be “considered waived if not repled.’’)

8 Given that Plaintiff is being granted leave to file an SAC, the motion for more || definite statement is DENIED WITHOUT PREJUDICE. If Plaintiff does not file an ||SAC by January 31, 2020, the case will be dismissed without prejudice and without || further court order.

12 IT IS SO ORDERED.

13 Dated: January 3, 2020 € Hon. Cathy Ann Bencivengo 15 United States District Judge