EXPARTE MOTION TO AMEND COMPLAINT ALLOWING A SECOND AMENDED COMPLAINT TO BE FILED

JOHN A. MENDEZ, District Judge.

NOTICE

PLEASE TAKE NOTICE, that Plaintiff, Juana Gudino, by and through her attorney Travis E. Stroud moves this Court, for an exparte order, permitting Plaintiff to amended the 1st Amended Complaint, thus allowing a 2nd Amended Complaint.

This motion will be based on Local Rule 220, of this District Court, and Rule 15 of the Fed. Rules of Civ. Proc.

MOTION

STATEMENT OF FACTS

On April 19th, 2017 Plaintiff alleges that she had a root canal done by Defendants in which she was injured through Defendant's negligence. She retained attorney, Travis E. Stroud, to help her litigate her case.

Plaintiff filed her first Complaint on April 18, 2018. That Complaint was dismissed because Plaintiff did not give Defendant, The United States of America, 6 months to respond to her medical claim per 28 U.S.C. 2675. Plaintiff filed her Complaint prematurely because it was unclear to her which date was the operative date for filing her Complaint. Was the proper date six months after the original date Plaintiff's claim was filed with the United States of America or 6 months after the date her amended claim was filed with the United States of American? Ultimately the Court ruled that the operative date was six months after the amended claim was filed. Thus the Court dismissed the Plaintiff's complaint with leave to amend after the United States of America was given the appropriate time to respond to her claim, pursuant to 28 U.S.C. 2675.

On May 9th, 2018 Plaintiff filed her 1st Amended Complaint.

As of today The United States was mailed a Waiver of Service of Summons form on June 25th, 2018. There has not been any response.

ISSUE

Should this Court grant Plaintiff's request and allow her to cause a 2nd Amended Complaint to be filed?

ANALYSIS

Rule 15. Amended and Supplemental Pleadings, states:

Here, Plaintiff believes that she must get permission to amend the complaint, because she was allowed to amend her complaint once already. This could constitute her right to amend as a matter of course per Rule 15(a)(1).

Rule 15(a)(2) allows a party to amend with the written consent of the Defendants or the Court's leave. Here, it is asked that the Court grant Plaintiff's right to amend because no Defendants have answered at this time. Although the United States was mailed a Waiver of Service of Summons form on June 25th, 2018. There has not been any response.

The Amendments would be as follows. Instead of Northern Maidue Indian Tribe the named Defendant will be the Maidu Indian Tribe aka Greenville Rancheria of Maidu Indians dba Greenville Rancheria Health Clinic and the Greenville Rancheria Health Clinic aka Greenville Rancheria and Does 1-10.

Also in the Damages section of the 1st Amended Complaint it says Plaintiff prays for "Damages in the amount of $250,00 for non-economic loss." That was erroneously written, it should say $250,000. That will be corrected as well.

Since none of the parties have been served, or accepted service. Also, since the names of the Defendants that are changed will be very similar to initial pleadings there will be no prejudice to Defendants if this court allows the Amendment.

CONCLUSION

The Court should allow Plaintiff to amend her complaint to make minor changes to the Defendant's names.

My name is Travis E. Stroud, I am the attorney of record for Juana Gudino, Plaintiff in this matter. I'm writing to give the Court some insight in regards why the names may not be correct. There is an issue in whether the name of the Native American Tribe that runs or overseas Greenville Rancheria is acceptable or correct.

I went to the Greenville Rancheria's website and it discussed the history of the Maidue Tribe. The second paragraph states, "The Northern Maidu, the native inhabitants of Plumas and Surrounding counties, . . ." This is where I obtained name the Northern Maidue Indian Tribe. Exhibit 1.

I have been searching for the proper name to call the tribe. The Indian Health Service, which is a Federal Health Program for American Indians and Alaska Natives has a website. In regards to the Greenville Rancheria Tribal Health program it uses the name Greenville Rancheria of Maidu Indians. Exhibit 2.

I'm asking that the Court allow my client to amend so that this matter could move forward.

I make this declaration under penalty of perjury.

Travis E. Stroud, Attorney for Plaintiff.

EXHIBIT 1

EXHIBIT 2

Having Read Plaintiffs Exparte Motion to Amend Complaint, Allowing a 2nd Amended Complaint To be filed, finding good cause thereof. Plaintiff motion is hereby granted.

Plaintiff may file a 2nd Amended Complaint.

It is So Ordered: