(PC) DePonte v. Stohl

Opinion

1 Order 2 3 4 5 6 7 10 11 DAVID ARTHUR DEPONTE, Case No. 1:24-cv-00695-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO AMEND 13 v. (Doc. No. 40) SUDANO, M. DOBE, GUNSAGA, 15 Defendants. 16 17 18 Pending before the Court is Plaintiff’s pleading titled “Motion to File Second Amended 19 Complaint. Notice to Stand on First Amended Complaint,” filed on July 31, 2024. (Doc. No. 40). 20 Liberally construed, Plaintiff’s Motion disagrees with the Court’s July 17, 2024 Screening Order 21 finding his First Amended Complaint failed to state a claim and asks the Court to permit him to 22 file a Second Amended Complaint. (See generally id.). The Court thus construes Plaintiff’s 23 filing as a Motion to Amend.1 Plaintiff accompanied his Motion with a Second Amended 24 Complaint. (Doc. No. 41). 25

26 1 A motion’s “nomenclature is not controlling.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983) (quoting Sea Ranch Ass’n v. Cal. Coastal Zone Conservation Comm’ns, 537 F.2d 1058, 27 1061 (9th Cir. 1976)). Instead, we “construe [the motion], however styled, to be the type proper for the relief requested.” Id. 28 1 Under Rule 15, a party “may amend its filing once as a matter of course....” Fed. R. 2 | Civ. P. 15(a)(1). For subsequent amendments, “a party may amend its pleading only with the 3 | opposing party’s written consent or the court’s leave. The court should “freely give[ ]” leave to 4 | amend when there is no “undue delay, bad faith[,] dilatory motive on the part of the movant, . . . 5 | undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the 6 | amendment....” Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). 7 In its screening order, the Court afforded Plaintiff an opportunity to file a second amended 8 | complaint. (See Doc. No. 35 at 12-13). Thus, Plaintiff was not required to seek leave of the 9 | Court via a motion. However, in an abundance of caution, the Court will grant Plaintiff's Motion, 10 | deem the Second Amended Complaint the operative complaint, and screen the Second Amended 11 | Complaint in due course. 12 Accordingly, it is ORDERED: 13 1. Plaintiff's Motion to Amend (Doc. No. 40) is GRANTED. 14 2. The Court deems the Second Amended Complaint (Doc. No. 41) the operative 15 complaint in this case and will screen it in due course. 16 '7 | Dated: __August 27, 2024 Mihaw. Wh. foareh Zaskth 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE

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