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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JEFFERSON A. McGEE, No. CIV.S-04-2598 LKK DAD PS

Plaintiff,

v. ORDER

ARNOLD SCHWARZENEGGER,

et al.,

Defendants.

__________________________/

This matter is before the court on plaintiff’s motion for

summary judgment, which was submitted upon the record and briefs on

file pursuant to Local Rule 78-230(h). For the reasons explained

below, plaintiff’s motion will be denied.

By order filed April 15, 2005, plaintiff’s amended

complaint was dismissed with twenty days leave to amend. Plaintiff

did not timely file a second amended complaint. Rather, on April 29,

2005, plaintiff filed a motion for summary judgment, noticing the

motion for hearing on May 27, 2005. On the same day plaintiff also

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filed a motion for temporary restraining order and a motion for entry

of default judgment. Those motions were not set for hearing.

Each of the defendants have filed opposition to plaintiff’s

motions asserting that plaintiff’s motions are misplaced. Defendants

argue that presently there is no operative pleading on file in this

case, plaintiff’s amended complaint having been dismissed and

plaintiff having failed to file a second amended complaint. In his

reply, plaintiff requests an extension of time to file his second

amended complaint.

Having considered all written materials submitted in

connection with motions, the undersigned agrees with defendants that

plaintiff’s various motions are misplaced at this time. There being

no second amended complaint on file, even if the court were inclined

to recommend that summary judgment or default judgment be granted,

there simply is no pleading upon which judgment could be entered. 

With respect to the motion for default judgment, the court also notes

that the Clerk of the Court has not entered the default of any

defendant, which is a prerequisite to seeking default judgment. See

Fed. R. Civ. P. 55(a).

Regarding the renewed motion for temporary restraining

order, since plaintiff has yet to file a second amended complaint the

undersigned presently is unable to assess whether plaintiff has shown

either a likelihood of success on the merits and the possibility of

irreparable injury, or that serious questions are raised and the

balance of hardships tips sharply in plaintiff’s favor. See

Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir.

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1997); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374,

1376 (9th Cir. 1985). Indeed, whether this court even has

jurisdiction over the motion for temporary restraining order depends

on the nature of the claim(s) in plaintiff’s second amended

complaint. If the motion for injunctive relief raises issues

different from those presented in the complaint, the court likely

would have no jurisdiction over the motion. See Devose v.

Herrington, 42 F.3d 470, 471 (8th Cir. 1994); Stewart v. U.S.

Immigration and Naturalization Serv., 762 F.2d 193, 198-99 (2d Cir.

1985).

Finally, with respect to plaintiff’s request for extension

of time to file his second amended complaint, plaintiff asserts that

he did not become aware of the April 15, 2005 order dismissing his

amended complaint until May 4, 2005, which is when he received

defendant City of Sacramento’s opposition to plaintiff’s motions. 

Plaintiff represents that he never received a copy of the order by

mail and that he did not obtain a copy of the order until May 5,

2005, the same day plaintiff filed his request for extension of time. 

The undersigned has no reason to doubt plaintiff’s representations in

this regard, although the court notes that plaintiff has had ample

time to file a second amended complaint. Therefore, the undersigned

will reluctantly grant plaintiff’s request for an extension of time. 

However, plaintiff will be given ten additional days to file the

required pleading instead of the requested twenty days.

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Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s motion for summary judgment is denied

without prejudice as premature;

2. Plaintiff’s motions for temporary restraining order and

entry of default judgment also are denied without prejudice as

premature; and

3. Plaintiff’s request for extension of time is granted in

part. Plaintiff shall file and serve any second amended complaint

within ten (10) days of the date this order is filed. Failure to

timely file a second amended complaint will result in a

recommendation of dismissal.

IT IS SO ORDERED.

DATED: June 3, 2005.

DAD:th

ddad1\orders.prose\mcgee2598.plmsj

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