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CSPC Dophen Corporation v. Zhixiang Hu, 2:17-cv-1895 MCE DB PS. (2019)

Court: District Court, E.D. California Number: infdco20190227b25 Visitors: 9
Filed: Feb. 26, 2019
Latest Update: Feb. 26, 2019
Summary: ORDER DEBORAH BARNES , Magistrate Judge . Defendant and counterclaimant, Dr. Zhixiang Hu, Ph.D., is proceeding in this action pro se. (ECF No. 68.) Accordingly, this action has been referred to the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. 636(b)(1). On January 16, 2019, plaintiff filed a motion for leave to file a second amended complaint. (ECF No. 147.) On January 31, 2019, plaintiff filed a motion for leave to file a third amended complaint. (ECF No. 150.) Both motion
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ORDER

Defendant and counterclaimant, Dr. Zhixiang Hu, Ph.D., is proceeding in this action pro se. (ECF No. 68.) Accordingly, this action has been referred to the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On January 16, 2019, plaintiff filed a motion for leave to file a second amended complaint. (ECF No. 147.) On January 31, 2019, plaintiff filed a motion for leave to file a third amended complaint. (ECF No. 150.) Both motions are noticed for hearing before the undersigned on March 1, 2019. (ECF No. 161.)

However, on February 15, 2019, defendant filed a statement of non-opposition to plaintiff filing a third amended complaint. (ECF No. 165.) Therein, defendant notes that defendant did oppose plaintiff's proposed second amended complaint. (Id. at 2.) Defendant is advised that Local Rule 220 requires that any amended complaint be complete in itself without reference to prior pleadings. Thus, the third amended complaint will supersede all prior complaints. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Plaintiff's unopposed motion for leave to file a third amended complaint will, therefore, be granted and plaintiff's will be ordered to file a true copy of the proposed third amended complaint filed on January 31, 2019.1 (ECF No. 150-2.)

Additionally, noticed for hearing before the undersigned on March 1, 2019, and March 8, 2019, are numerous discovery related motions and defendant's motion for leave to file a second amended counterclaim. (ECF Nos. 149, 152, 154, 155-59.) However, on February 22, 2019, defendant filed a proposed substitution of attorney Jack Duran, Jr. (ECF No. 167.) But it is unclear if attorney Duran signed that document. And the document was not filed by attorney Duran. The issue of whether defendant is proceeding pro se or through counsel must be decided prior to the resolution of the pending motions. The hearing of these motions will, therefore, be continued.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's January 16, 2019 motion for leave to file a second amended complaint (ECF No. 147) is denied as having been rendered moot;

2. Plaintiff's January 31, 2019 motion for leave to file a third amended complaint (ECF No. 150) is granted;

3. Within fourteen days of the date of this order, plaintiff shall file a copy of the third amended complaint which will serve as plaintiff's operative pleading;

4. The hearing of the motions set for March 1, 2019, and March 8, 2019, (ECF Nos. 149, 152, 154, 155-59), are continued to March 22, 2019; and

5. On or before March 8, 2019, any counsel substituting in on behalf of defendant Hu shall file a Consent Order Granting Substitution of Attorney form along with a short declaration addressing any need for additional time.

FootNotes


1. The true copy filed by plaintiff shall be formatted as a typical complaint and omit references to edits from prior drafts.
Source:  Leagle

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