Espinosa v. Whitepages, Inc.

Filing 24

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/19/15 ORDERING that the hearings on Plaintiff's Motion to Amend 6 and Defendant's MOTION to DISMISS 17 are CONTINUED to 4/8/2015. Within 14 days of the date of this order, Plain tiff shall file a declaration complying with the pre-filing review order issued in Espinosa v. Marshall, 2:06-cv-1192 MCE GGH PS, ECF No. 92. Failure to comply with this order will result in a recommendation that this action be dismissed.(Mena-Sanchez, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DARREL L. ESPINOSA,

12
13
14
15

No. 2:14-cv-2829-MCE-EFB PS

Plaintiff,
v.

ORDER

WHITEPAGE, INC., a Delaware
corporation dba whitepages.com,
Defendant.

16
17

On December 4, 2014, plaintiff filed a complaint and a motion for leave to proceed in
18

forma pauperis pursuant to 28 U.S.C. § 1915.1 ECF Nos. 1, 2. On December 29, 2014, plaintiff

19
filed an amended complaint. Then, on January 23, 2015, plaintiff filed a motion for leave to file a
20
second amended complaint, which is currently noticed for hearing on February 25, 2015. ECF
21
No. 6. On January 28, 2015, the court granted plaintiff’s request to proceed in forma pauperis.
22
The order observed that pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case
23
filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegations of
24
poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief
25
may be granted, or seeks monetary relief against an immune defendant. ECF No. 10 at 1.
26
27
28

1

This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to
Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).
1

1

Because that determination could not be made on the record before the court at that time, the

2

court reserved decision on the issues until the record was sufficiently developed and directed

3

plaintiff to submit documents for service of process to the United States Marshal. Id. at 1-2.

4

On February 9, 2015, defendant filed a motion to dismiss for failure to state a claim

5

pursuant to Federal Rule of Civil Procedure 12(b)(6), which is noticed for hearing on March 18,

6

2015. ECF No. 17. In that motion, defendant brought to the court’s attention that plaintiff has

7

been declared a vexation litigant and is subject to a pre-filing review order. P&A ISO Def.’s

8

Mot. to Dism., ECF No. 18; see Espinosa v. Marshall, 2:06-cv-1192 MCE GGH PS. The pre-

9

filing review order, filed on June 15, 2007, required plaintiff to file with any new action a

10

declaration which stating why he believes his claims have merit and that the action is not

11

frivolous or made in bad faith, listing all previous actions filed by plaintiff in this or any other

12

court, and identifying the names of all defendants and all claims made in previous actions.

13

Espinosa v. Marshall, 2:06-cv-1192 MCE GGH PS, ECF No. 92 at 2. Plaintiff was also ordered

14

to certify that the defendants named in the proposed action have not previously been sued by

15

plaintiff. Id.

16

Plaintiff has failed to comply with that order. Further, because plaintiff failed to file a

17

copy of the court’s July 15, 2007 order with his complaint, the clerk’s office was unaware of the

18

pre-filing screening order when this case was opened. Accordingly, plaintiff shall comply with

19

the July 15, 2007 pre-filing screening order. Upon plaintiff’s compliance with that order, this

20

court will review the declaration plaintiff submits and determine whether this action may proceed.

21

Accordingly, it is hereby ORDERED that:

22

1. The hearings on plaintiff’s motion to amend and defendant’s motion to dismiss are

23

continued to April 8, 2015.

24

2. Within 14 days of the date of this order, plaintiff shall file a declaration complying

25

with the pre-filing review order issued in Espinosa v. Marshall, 2:06-cv-1192 MCE GGH PS,

26

ECF No. 92.

27

/////

28

/////
2

1

3. Failure to comply with this order will result in a recommendation that this action be

2

dismissed.

3

DATED: February 19, 2015.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3