Free Motion to Amend/Correct - District Court of California - California

Case 3:07-cv-02426-JCS

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KERRY M. GOUGH, State Bar No. 039966 GOUGH & COMPANY The London Building at Jack London Square 160 Franklin Street, Suite 209 Oakland, CA 94607 Telephone: (510) 832-5800 Attorneys for Michael Gailey UNITED STATES DISTRICT COURT

6 7 8 9 10 11 12 13 14 15 16 17 TO DEFENDANTS AND TO THEIR COUNSEL OF RECORD: 18 PLEASE TAKE NOTICE THAT on Friday, January 11, 2008, at 9:30 a.m. in Courtroom A of 19 the above captioned court, Plaintiff will and hereby does move this court for orders amending the 20 scheduling order and for leave to file a second amended complaint in this action. 21 The proposed amendment adds causes of action for battery and false arrest under state law 22 against defendants. A copy of the proposed causes of action is attached hereto. 23 The motion for an order amending the scheduling order is made pursuant to Rule 16 of the 24 Federal Rules of Procedure on the grounds good cause exists to amend the order to allow a hearing on a 25 motion to amend the complaint because the PreTrial Order is ambiguous regarding a deadline for filing 26 amendments or in the alternative fails to state a deadline for filing motions to amend and because good 27 cause exists to amend the scheduling order, as demonstrated in the memorandum of points and 28 Notice of Motion to Amend Scheduling Order for Leave to File 2d Amended Complaint. Case No. C-07-02426 JCS Page 1 MICHAEL GAILEY, Plaintiff, vs. CITY OF ANTIOCH, et al Defendants ) ) ) ) ) ) ) ) ) ) ) ) Case No. C-07-02426 JCS ADR NOTICE OF MOTION AND MOTION TO AMEND SCHEDULING ORDER AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT DATE: January 11, 2008 TIME: 9:30 a.m. COURTROOM: A 15th Floor NORTHERN DISTRICT OF CALIFORNIA

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authorities in support of this motion. This motion for leave to amend the complaint is made pursuant to Federal Rule of Procedure 15(a)(2) on the ground that in order for Plaintiff to seek full relief from all defendants, including the City of Antioch, he must be able to assert causes of action for battery and false arrest which inadvertently were not plead in the original complaint, and that justice requires that the leave be granted to file the proposed amended complaint. This motion is based upon this notice, the attached proposed second amended complaint, the points and authorities and declaration of counsel filed herewith. December 7, 2007 GOUGH & COMPANY Counselors at Law

_________________________ Kerry M. Gough

Notice of Motion to Amend Scheduling Order for Leave to File 2d Amended Complaint. Case No. C-07-02426 JCS Page 2

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 46.

ATTACHMENT TO NOTICE OF MOTION
Gailey v City of Antioch, et al., C-07-02426 JCS

FIFTH CAUSE OF ACTION (Battery) For a fifth and separate cause of action against defendants, and each of them, PLAINTIFF alleges: 44. PLAINTIFF hereby incorporates by reference paragraphs 1 through 18, inclusive, and 21

through 23, inclusive as though fully set forth at length, excepting however, punitive damages are not sought against the CITY of ANTIOCH, a public entity. 45. Plaintiff did not consent to the physical contact from Defendants. Defendants had no right tackle, strike, hit and handcuff Plaintiff. Defendants had no reasonable cause to suspect or believe that PLAINTIFF had

committed any wrongdoing whatsoever. 47. As a result of the acts of Defendant, Plaintiff suffered severe emotional distress and

serious physical injuries. Wherefore Plaintiff prays damages as hereinafter set forth. SIXTH CAUSE OF ACTION False Imprisonment/ False Arrest For a sixth and separate cause of action against defendants, and each of them, PLAINTIFF

19 alleges: 20 48. 21 through 23, inclusive as though fully set forth at length, excepting however, punitive damages are not 22 sought against the CITY of ANTIOCH, a public entity. 23 49. 24 of physical force and intimidation. 25 50. 26 committed any wrongdoing whatsoever. 27 28 Notice of Motion to Amend Scheduling Order for Leave to File 2d Amended Complaint. Case No. C-07-02426 JCS Page 3 Defendants had no reasonable cause to suspect or believe that PLAINTIFF had Defendants and each of them confined and restrained PLAINTIFF against his will by use PLAINTIFF hereby incorporates by reference paragraphs 1 through 18, inclusive, and 21

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WHEREFORE, Plaintiff respectfully requests the following relief against each and every Defendant herein, jointly and severally: a. reasonable; b. punitive damages under 42 USC §1983 and California law in an amount compensatory in an amount according to proof and which is fair, just and

according to proof and which is fair, just, and reasonable; c. all other damages, penalties, costs, interest, and attorney fees as allowed by 42

USC §§ 1983 and 1988, and as otherwise may be allowed by California and/or federal law;

Notice of Motion to Amend Scheduling Order for Leave to File 2d Amended Complaint. Case No. C-07-02426 JCS Page 4

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of Motion to Amend Scheduling Order for Leave to File 2d Amended Complaint. Case No. C-07-02426 JCS Page 5