Maria Varela v. Deirdre Fyke

Filing 9

MINUTES (IN CHAMBERS) Order to Show Cause Why Action Should Not Be Dismissed by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 10/5/2017. (SEE ORDER FOR DETAILS) (Attachments: # 1 Notice of Dismissal Form) (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

SACV 17-1217-PSG-KK

Date: September 14, 2017

Title: Maria Varela v. Deirdre Fyke

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why Action Should Not Be
Dismissed

On July 17, 2017, Defendant Deirdre Fike, Federal Bureau of Investigations Assistant
Director in Charge (“Defendant”) removed the instant action to this Court pursuant to 28
U.S.C. § 1442(a)(1). ECF Docket No. (“Dkt.”) 1. This Court, having reviewed the documents
filed in both this Court and the Orange County Superior Court, finds the action is subject to
dismissal because there is no operative complaint. The Court will not make a final determination
regarding whether the action should be dismissed, however, without giving Plaintiff Maria Varela
(“Plaintiff”) an opportunity to address the issues identified below.
I.
BACKGROUND
On June 2, 2017, Plaintiff filed a Request for a Civil Harassment Restraining Order
(“Request”) against Defendant in Orange County Superior Court, Maria Varela v. Deirdre Fike,
Case No. 30-2017-00923808. Dkt. 1-1, Notice of Removal Exhibit (“Ex.”) 1 at 1-6. Plaintiff
sought a temporary restraining order (“TRO”) to “stop satellite terrorism and attacks with
satellites from the FBI.” Id., Ex. 1 at 6. On June 5, 2017, the Orange County Superior Court
issued a TRO against Defendant. Id., Ex. 1 at 12-21. The court set an Order to Show Cause
(“OSC”) hearing for June 28, 2017 and ordered the TRO would expire after the hearing. Id. On
June 15, 2017, the superior court continued the OSC to July 19, 2017. Id. at 27-28.
On July 17, 2017, Defendant removed the instant action to this Court. Dkt. 1.
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II.
DISCUSSION
A.

THE TRO IS EXPIRED

A state court-issued TRO expires upon expiration of its effective period under state law,
but no later than fourteen days after the date of removal, unless extended by the court for good
cause, or by consent of the adverse party. Fed. R. Civ. P. 65(b)(2); Granny Goose Foods, Inc. v.
Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, 415 U.S. 423, 426, 435-38, 94 S.
Ct. 1113, 39 L. Ed. 2d 435 (1974); see also Logvinov v. Wells Fargo Bank, No. C-11-04772-DMR,
2011 WL 6141003, at *1 (N.D. Cal. Dec. 9, 2011). Pursuant to Section 527(d)(4) of the California
Code of Civil Procedure, if an opposing party obtains a continuance of the hearing on the
preliminary injunction, “the temporary restraining order shall remain in effect until the date of
the continued hearing.” Cal. Code Civ. Proc. § 527(d)(4).
Here, the TRO would have expired after the continued July 19, 2017 hearing, but in no
event later than fourteen days after July 17, 2017, when Defendant removed the action to federal
court. Plaintiff has not moved to extend the TRO. Therefore, the latest date on which the TRO
expired was July 31, 2017.
B.

THERE IS NO OPERATIVE COMPLAINT

“A civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3. “A
complaint must contain the following: (1) a statement of the grounds for jurisdiction, (2) a short
and plain statement of the claim showing why the Plaintiff is entitled to relief, and (3) a demand
for relief.” Fed. R. Civ. P. 8(a). Absent an operative complaint, an action is subject to dismissal.
See Jaquess v. United States, No. 2:16-CV-01710-APG-VCF, 2016 WL 7115890, at *1 (D. Nev.
Oct. 24, 2016), report and recommendation adopted, 2016 WL 7116004 (D. Nev. Dec. 6, 2016)
(finding the action subject to dismissal because there was no operative complaint as required to
initiate an action in federal court pursuant to Federal Rule of Civil Procedure 3).
Here, the Request for a Civil Harassment Restraining Order that Plaintiff filed in Orange
County Superior Court is not a complaint. Id. Moreover, as discussed above, the relief sought in
the Request has expired.1 Therefore, there is no operative complaint in this action and the action
is subject to dismissal.
///
1

In addition, the Court lacks authority to extend the TRO absent an operative complaint.
See Carnero v. Elk Grove Fin., LLC, No. 16-CV-03606-BLF, 2017 WL 1315575, at *4 (N.D. Cal.
Apr. 6, 2017) (denying TRO because there was no operative complaint); Perez v. San Miguel
Homes for the Elderly, LLC, No. 15-CV-05556-DMR, 2016 WL 3709622, at *1 (N.D. Cal. Feb.
9, 2016) (holding “the claims that form the basis for the request for a TRO must be part of the
operative complaint”).
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III.
ORDER
Accordingly, based upon the record before this Court it appears the action is subject to
dismissal. Plaintiff is therefore ORDERED TO SHOW CAUSE why this action should not be
dismissed by filing a written response no later than October 5, 2017.
Instead of filing a response to the instant Order, Plaintiff may request a voluntary
dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of the
Court has attached a Notice of Dismissal form.
The Court warns Plaintiff failure to timely file a response to this Order will result in
the Court dismissing this action without prejudice for failure to prosecute and comply with
court orders. See Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order on Plaintiff at her
current address of record.
IT IS SO ORDERED.

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