Cruz-McCoy v. Rady Children's Hospital
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court dismissed the plaintiff's civil action without further leave to amend because she failed to file an amended complaint or seek an extension after a prior dismissal with leave to amend. The court directed the Clerk to enter final judgment and close the file.
| 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 order recites that the court previously dismissed the complaint with leave to amend by a specific deadline. It further recites that the plaintiff did not file an amended complaint, did not seek an extension, and did not file a new IFP motion within the time allowed. Under Ninth Circuit precedent, a district court may convert a dismissal with leave to amend into a dismissal of the entire action when the plaintiff fails to comply with the court's deadline to amend. The court's decision follows directly from the procedural history and the cited authorities. |
The order itself: sound — The order is procedurally sound. It correctly identifies the prior order granting leave to amend, notes the plaintiff's inaction (failure to amend, seek extension, or re-file IFP), and applies the correct Ninth Circuit authority for converting a dismissal with leave to amend into a dismissal of the action for failure to prosecute under Rule 41(b). The reasoning is concise and directly addresses the procedural default.
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.: 23CV35-GPC(KSC)
12 Plaintiff, ORDER DISMISSING CIVIL 13 v. ACTION FOR FAILING TO STATE A CLAIM AND FOR FAILING TO 14 Rady Children’s Hospital, San Diego PROSECUTE IN COMPLIANCE Child Welfare Services, Christopher 15 WITH COURT ORDER REQUIRING Hines, Lynette Miller, Renee Silvestri, AMENDMENT 16 Daniela Morales, Dr. Jenkins, Dr. Patel, Kimberly Giardina, and Nick Macchione, 17 Defendants. 18 19 On April 27, 2023, the Court denied Plaintiff’s motion to proceed in forma 20 pauperis and sua sponte dismissed the complaint for failing to state a claim with leave to 21 amend. (Dkt. No. 5.) The Court granted Plaintiff leave to file an amended complaint to 22 correct the deficiencies identified in the Court’s order no later than May 26, 2023. (Id.) 23 One month has passed since the Court’s dismissal order, and to date, Plaintiff has not 24 filed an amended complaint, not sought an extension of time to file one and has not filed 25 an amended motion to proceed in forma pauperis. Accordingly, the Court DISMISSES 26 this civil action in its entirety without further leave to amend based on Plaintiff’s failure 27 1 || to state a claim upon which relief can be granted and her failure to prosecute pursuant to 2 || Federal Rule of Civil Procedure 41(b). See Edwards v. Marin Park, 356 F.3d 1058, 1065 3 || (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to the court’s 4 || ultimatum—either by amending the complaint or indicating to the court that [she] will 5 do so—is properly met with the sanction of a Rule 41(b) dismissal.”’); Lira v. 6 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 7 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 8 complaint into dismissal of the entire action.”). The Court DIRECTS the Clerk of Court 9 || to enter final judgment of dismissal and to close the file. 10 IT IS SO ORDERED. 11 ||Dated: June 28, 2023 = ) 12 Cdratho Cx 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23CV35-GPC(KSC)