Espinosa v. Persopo.com, Inc.

Filing 12

ORDER signed by District Judge Kimberly J. Mueller on 8/2/17 ORDERING that this action is DISMISSED with prejudice. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARREL L. ESPINOSA,

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No. 2:16-mc-00168-KJM

Plaintiff,
v.

ORDER

PERSEPO.COM, INC., et al.,
Defendants.

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This case is before the court as required by a pre-filing review order issued in a

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prior case. See Espinosa v. Marshall et al., Case No. 2:06-cv-01192-MCE-GGH (E.D. Cal. June

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15, 2007). The pre-filing review order declared plaintiff a “vexatious litigant” and required

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plaintiff to submit a declaration certifying that any new litigation is not related to prior cases

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brought by plaintiff and that the new claims are not frivolous or made in bad faith. Id. at 2–3.

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On October 14, 2016, plaintiff filed the complaint in this action and a pre-filing

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review declaration. ECF Nos. 1, 3. Upon review of plaintiff’s declaration, the court found it

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could not determine whether the instant case “is in fact related to a previous case filed by

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plaintiff,” as required by the pre-filing review order. ECF No. 6 (filed November 1, 2016). The

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court struck plaintiff’s declaration, allowed him to file a second declaration complying with the

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pre-filing review order within fourteen days, and warned that his failure to do so could result in

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dismissal. Id. at 2.
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Rather than filing a second declaration, plaintiff appealed. ECF No. 7 (notice of

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appeal filed November 4, 2016). Because this court had not issued a final or appealable order, the

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Ninth Circuit dismissed for lack of jurisdiction. ECF Nos. 9, 10 (mandate issued January 5,

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2017).

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It has been over six months since the Ninth Circuit dismissed plaintiff’s appeal.

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As of this date, he has not filed a subsequent declaration complying with his pre-filing review

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order or otherwise enabling the court to determine whether this action “is in fact related to a

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previous case filed by plaintiff,” as the pre-filing review order requires. Plaintiff has been fairly

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warned of the consequences of not filing a second declaration and has had ample time to do so.

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Given his sustained silence, dismissal is appropriate.

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Accordingly, the court DISMISSES this action with prejudice.

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This order resolves ECF No. 6.

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IT IS SO ORDERED.

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DATED: August 2, 2017.

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UNITED STATES DISTRICT JUDGE

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