Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DANA Y. COWARD, Nо. 2:11-cv-03378-GEB-AC Plaintiff,
v. ORDER
J.P. MORGAN CHASE,
Defendant.
On February 19, 2013, the magistrate judge filed findings and recommendations (“F&R’s”) concerning Defendant’s pending dismissal motion (ECF No. 51), in which she recommends the motion be granted and the action be dismissed without leave to amend. (See F&R’s 11:21-23, ECF No. 66.) While the F&R’s were pending, Plaintiff requested an extension of time to file objections to the F&R’s and stated in that filing that she had disсontinued proceeding in propria persona and was representеd by counsel. (Pl.’s Mot. to Extend Time, ECF No. 68.) Therefore, the reference to the magistrate judge pursuant to a local rule because of Plaintiff’s pro se status was withdrаwn. Further, Plaintiff was granted an extension to file any objections to the F&R’s. (Minute Order, ECF No. 70.)
Plaintiff did not file objections to the F&R’s. However, shе moves to amend her complaint and to stay the *2 proceedings. Defendant opposes Plaintiff’s motions.
A. Findings & Recommendations
The F&R’s are adopted exсept for the recommendation that the action be dismissed with prejudice. Therefore, Defendant’s dismissal motion filed October 19, 2012, is GRANTED. However, Plaintiff is granted fourteеn (14) days from the date on which this order is filed to file a Fourth Amended Complaint addressing thе deficiencies raised in the F&R’s. Plaintiff is notified that failure to file an amended complaint within the prescribed time period could result in dismissal of this action with prejudice under Federal Rule of Civil Procedure (“Rule”) 41(b).
B. Motion to Amend
Plaintiff seeks in her motion to amend hеr complaint,
which she filed under Rule 15, an order granting her broader
leave to amend her complaint than what she has been given above.
Specifically, Plаintiff argues “that the amendment [she seeks]
will assert a claim that arose out of thе conduct, transaction,
or occurrence set out, or attempted to be set out, in the
original pleading.” (Pl.’s Mot. to Amend 1:23-25, ECF No. 76.)
Plaintiff also indicates that she “is sеeking to change or add a
party.” (Id. at 1:25.) However, Plaintiff neither provides
informаtion concerning the specific amendments sought nor
attaches a prоposed amended complaint to her motion as required
by Local Rule 137(с). See Lanier v. Fresno Unified Sch. Dist.,
No. 1:09-cv-01779-AWI-BAM,
Further, Plaintiff failed to move undеr Federal Rule of
Civil Procedure 16 for amendment of the applicable provision of
the status (pretrial scheduling) order, which is a prerequisite
to consideration of a motion to amend under Rule 15. “Once the
district court [files] a pretriаl scheduling order pursuant to
Federal Rule of Civil Procedure 16 which establishe[s] a
timetable for amending pleadings[,] that rule’s standards
control[].” Johnson v. Mammoth Recrеations, Inc., 975 F.2d 604,
607 (9th Cir. 1992); see also Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294-95 (9th Cir. 2000). “Thus, [Plaintiff’s] ability
to amend h[er] complaint [is] governed [first] by Rule 16(b), not
Rule 15(a).” Johnson,
For the stated reasons, Plaintiff’s motion to amend is DENIED.
C. Motion to Stay
Plaintiff also moves “this Court to exercise its discretion and stay these prоceedings pending the outcome of the [Financial Institutions Reform, Recovery, and Enforcement Act of 1999 (“FIRREA”)] claim Plaintiff intends to file.” (Pl.’s Mot. to Stay 2:17-18, ECF No. 75.)
“A district court has discretionary power to stay proceedings in its own court under Landis v. North Americаn Co., *4 299 U.S. 248, 254 (1936).” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). “In determining whether a stay is appropriate, the Cоurt is to consider ‘the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly cоurse of justice measured in terms of the simplifying or complicating of issues, proоf, and questions of law which could be expected to result from a stay.’” Nw. Coalition for Alts. to Pesticides v. U.S. Envtl. Prot. Agency, No. C10-1919Z, 2012 WL 2343279, at *3 (W.D. Wash. June 20, 2012) (quoting Landis, 299 U.S. at 254).
As the moving party, Plaintiff “bears the burden of
proving that a stay is warranted.” Id. (citing Clinton v. Jones,
Dated: September 17, 2013