The Estate of Jean Ellyn Tuck v. CF Real Estate Services
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court previously dismissed the plaintiffs' complaint without prejudice for improper venue and granted them 45 days to file an amended complaint establishing proper venue. Because the plaintiffs failed to file an amended complaint by the deadline, the court dismissed the action with prejudice, while noting that the dismissal is without prejudice to refiling in the proper venue.
| What the court decided | The model |
|---|---|
Dismissal of the action with prejudice due to failure to file an amended complaint“Accordingly, the Court DISMISSES WITH PREJUDICE the action. This dismissal is WITHOUT PREJUDICE to Plaintiffs refiling their claims in the proper venue.” | agree with court The court had previously granted leave to amend with a specific deadline and warned that failure to comply would result in dismissal. The plaintiffs failed to file by the deadline. Dismissing the case for failure to prosecute or comply with a court order is a standard exercise of the court's inherent authority and Rule 41(b). The contradictory language (with prejudice but without prejudice to refiling) is a common drafting convention in venue dismissals to ensure the case is closed in this district but does not bar the plaintiff from starting over in the correct district. |
The order itself: sound — The order is procedurally sound. It correctly applies the consequence of the previous order (failure to amend leads to dismissal). The citation to Lira v. Herrera is appropriate for the proposition that a court may dismiss with prejudice for failure to comply with a deadline to amend. The contradictory language regarding 'with prejudice' and 'without prejudice to refiling' is legally consistent in the context of venue; it dismisses the current action in this court with prejudice (finality) but preserves the substantive right to sue in the proper venue.
How this analysis was made · dispute it
inconsistent with cited authorityOpinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 THE ESTATE OF JEAN ELLYN TUCK, Case No.: 21-CV-920 JLS (BLM) and THE ESTATE OF ROBERT JAMES 11 TUCK ORDER DISMISSING CASE 12 Plaintiff, 13 v. 14 CF REAL ESTATE SERVICES, 15 Defendant. 16 17 18 On May 27, 2021, the Court dismissed Plaintiffs Estate of Jean Ellyn Tuck and 19 Estate of Robert James Tuck’s Complaint without prejudice for improper venue. ECF No. 20 3. The Court granted Plaintiffs leave to file an amended complaint within forty-five (45) 21 days that sets forth a basis for venue in the Southern District of California. Id. at 4. The 22 Court warned that “[s]hould Plaintiffs fail to file an amended complaint within the time 23 provided, the Court will enter a final order dismissing this civil action with prejudice.” Id. 24 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)). However, the Court stated 25 that “[s]uch dismissal would be without prejudice to Plaintiffs refiling their claims in the 26 proper venue.” Id. 27 Plaintiffs have failed to file an amended complaint by the July 12, 2021, deadline. 28 Accordingly, the Court DISMISSES WITH PREJUDICE the action. This dismissal is 1 || WITHOUT PREJUDICE to Plaintiffs refiling their claims in the proper venue. The 2 || Clerk of the Court SHALL CLOSE the file. 3 IT IS SO ORDERED. 4 ||Dated: July 16, 2021 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28