Monsivias v. Peterson

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA Idolio Monsivias, 4 2:22-cv-02116-JAD-MDC Plaintiff(s), vs. Order Cody Peterson et al., Defendant(s).

Plaintiff previously filed a Motion to Amend the Complaint. ECF No. 10. The Court denied the motion without prejudice (ECF No. 11) for failure to attach a complete proposed amended complaint to the motion. Plaintiff filed another Motion to Amend/Correct the Complaint (ECF No. 12).

DISCUSSION Pursuant to LR 15-1(a), unless the Court orders otherwise, the moving party must attach the proposed amended pleading to a motion seeking leave of the court to file an amended complaint. An amended complaint must be "complete in itself, including exhibits, without reference to the superseded pleading." Id. "[W]hen a plaintiff files an amended complaint, '[t]he amended complaint supersedes the original, the latter being treated thereafter as non-existent.'" Rhodes v. Plaintiff, 621 F.3d 1002, 1005 (9th Cir. 2010) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). A party may amend its pleading as a matter of course no later than 21 days after serving it. Fed. R. Civ. P. 15(a)(1)(A). “A document filed pro se is “to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal citations omitted).

Although the Plaintiff states in his Motion to Amend/Correct Complaint (ECG No. 12) that he “propose[s] to dismiss the case,” the Court liberally construes Plaintiff to mean he wishes to correct the Defendants’ names. Although the attached proposed amended complaint on ECF No. 12 is identical to the original complaint (ECF No. 1), Plaintiff does, however, change the Defendants’ names1 Plaintiff states that the paperwork suggests that there are four defendants when there should only be two. ECF No. 12. Using the above facts, the Court liberally construes that Plaintiff wishes to amend his complaint to properly reflect Defendants’ names.

5 Because Plaintiff has not served the complaint (ECF No. 1) on Defendants, Plaintiff may amend his complaint as a matter of course.

7 ACCORDINGLY, 8 IT IS ORDERED that Plaintiff’s Motion to Amend/Correct Complaint is GRANTED.

9 IT IS FURTHER ORDERED that Plaintiff has until February 2, 2024 to file his Amended Complaint, with the corrected parties’ names.

11 IT IS FURTHER ORDERED that Plaintiff has until February 6, 2024 to provide Proof of Service in accordance with the Courts previous Order (ECF No. 8).

NOTICE Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985).

20 This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 23 p1 laI it n s th ifo f u il nd f ob re m n ao tit oed n t oh na t p P agla ei n 1t 0if of fi n thco e r Are tc tatl cy h p mu et n D t e tof e En Cda Fn Nt S oe . a 1m 2;l e hs os w G eu vt ete r,r s th’ ein Cfo or um rta lt ii bo en r ao ln ly t h ce o nse sc trt uio en s tr he ese pr lv ae id n tf io ffr to mean that Seamless Gutters is a defendant, using reference from his prior complaint and motion.

1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

5 Pursuant to LR JA 3-1, the plaintiff must immediately file written notification with the court of any || change of address. The notification must include proof of service upon each opposing party’s attorney, || or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 5 in dismissal of the action.

DATED this 26th day of January 2024.

IT IS SO ORDERED.

Ab Makimiliano 9. Cowvillier III 10 United States/Magistrate Judge