DePonte v. Bierman

Background

On February 9, 2024, the court dismissed David Arthur DePonte’s First Amended Complaint and gave him until March 8, 2024, to file a Second Amended Complaint. On March 1, DePonte filed a motion describing retaliation he said he experienced after filing the lawsuit. On March 6, he filed a motion for permission to file an amended complaint.

Ruling

The court construed the March 6 motion as a request for an extension of time and granted it. DePonte’s Second Amended Complaint is due April 15, 2024. It must use the caption and civil case number in the order, 23-cv-03813-LJC, and include the words “SECOND AMENDED COMPLAINT” on its first page.

The court explained that an amended complaint completely replaces the earlier complaint. DePonte therefore must include every claim he wishes to present and may not incorporate the original Complaint by reference. The court directed him to explain the facts as though presenting them for the first time. It warned that failure to amend by April 15, 2024, will result in dismissal of the case.

Joinder of defendants and claims

The court said DePonte may include additional defendants in the Second Amended Complaint if the requirements for joining defendants under Federal Rule of Civil Procedure 20(a)(2) are met. In general, that rule requires claims against the defendants to arise from the same transaction or occurrence, or related transactions or occurrences, and to involve a common question of law or fact. The court stated that DePonte’s retaliation claims based on filing the lawsuit were sufficiently related to the underlying claims to be included, but cautioned him not to combine unrelated claims against different defendants.

Disposition

The court granted the motion as construed and stated that the order terminated docket entries 38 and 39. The order did not decide the merits of DePonte’s underlying claims.