Cruz v. County of County CWS/HHS
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court considered the status of a civil action where the plaintiff failed to file an amended complaint after a prior order granting leave to amend. The court dismissed the civil action in its entirety without further leave to amend for failure to state a claim and failure to prosecute.
| What the court decided | The model |
|---|---|
Dismissal of the civil action in its entirety without further leave to amend“Accordingly, the Court DISMISSES this civil action in its entirety without further leave to amend based on Plaintiff's failure to state a claim upon which relief can be granted and her failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” | agree with court The court previously granted leave to amend with a specific deadline. The plaintiff failed to file an amended complaint or seek an extension within the allotted time. Under Ninth Circuit precedent, a plaintiff's failure to respond to a court's ultimatum to amend or indicate refusal to do so justifies dismissal of the entire action under Rule 41(b). The record indicates the plaintiff was notified of the order and deadline, and the deadline passed without action. |
The order itself: sound — The order correctly applies Federal Rule of Civil Procedure 41(b) and binding Ninth Circuit precedent to dismiss the action for failure to prosecute after the plaintiff failed to comply with a prior order to amend. The reasoning is concise but sufficient for a procedural dismissal based on non-compliance with a court order.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Leila Cruz McCoy, Case No.: 3:23-CV-0273-GPC-KSC 12 Plaintiff, 13 v. ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE 14 San Diego County Child Welfare A CLAIM AND FOR FAILING TO Services, Rady Children’s Hospital, 15 PROSECUTE IN COMPLIANCE California Department of Social Services, WITH COURT ORDER REQUIRING 16 Orange County, Ventura County, and Los AMENDMENT Angeles County, 17 Defendants. 18 19 On April 26, 2023, the Court granted Plaintiff’s motion to proceed in forma pauperis 20 and sua sponte dismissed the complaint for failing to state a claim with leave to file an 21 amended complaint to correct the deficiencies identified in the Court’s order no later than 22 May 26, 2023. (Dkt. No. 3.) On May 9, 2023, the order was returned undeliverable. (Dkt. 23 No. 4.) On May 22, 2023, Plaintiff filed a motion to appoint counsel that included a new 24 address. (Dkt. No. 5.) On May 25, 2023, the Court rejected the motion to appoint counsel 25 as premature because an amended complaint had not been filed. (Dkt. No. 6.) The Clerk 26 27 1 1 || of Court, sua sponte’, updated the address on the docket and mailed a copy of the Court’s 2 || order to the updated address. (/d.) One month has passed since Clerk of Court mailed the 3 || Court’s order, and to date, Plaintiff has not filed an amended complaint, and not sought an 4 ||extension of time to file one. Accordingly, the Court DISMISSES this civil action in its 5 entirety without further leave to amend based on Plaintiff's failure to state a claim upon 6 || which relief can be granted and her failure to prosecute pursuant to Federal Rule of Civil 7 || Procedure 41(b). See Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The 8 || failure of the plaintiff eventually to respond to the court’s ultimatum—either by amending 9 || the complaint or indicating to the court that [she] will not do so—is properly met with the 10 || sanction of a Rule 41(b) dismissal.”’); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 11 || (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district 12 || court may convert the dismissal of the complaint into dismissal of the entire action.”). The 13 |}Court DIRECTS the Clerk of Court to enter final judgment of dismissal and to close the 14 || file. 15 IT IS SO ORDERED. 16 Dated: June 28, 2023 < ) Caste (AO 17 Hon. athe Cade 18 United States District Judge 19 20 21 22 23 24 25 | A party proceeding pro se must keep the Court advised as to a current address or the action may be 26 || dismissed for failure to prosecute. S.D. Local Civ. R. 83.11(b). 27 28 3:23-CV-0273-GPC-KSC