Bruzzone v. Intel Corporation

Filing 10

ORDER signed by Magistrate Judge Deborah Barnes on 10/18/18 DENYING, without prejudice to renewal, 7 Motion to Dismiss and 8 Motion to Declare Plaintiff Vexatious. The 11/16/18 hearing of defendants' motions is VACATED. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. BRUZZONE, 12 13 14 15 No. 2:18-cv-0865 KJM DB PS Plaintiff, v. ORDER INTEL CORPORATION, Defendant. 16 17 Plaintiff, Michael Bruzzone, is proceeding in this action pro se. This matter was referred 18 to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On 19 April 10, 2018, plaintiff filed a complaint and motion to proceed in forma pauperis pursuant to 28 20 U.S.C. § 1915. (ECF Nos. 1 & 2.) On September 28, 2018, the undersigned issued an order 21 dismissing plaintiff’s complaint with leave to amend. (ECF No. 3.) 22 On October 18, 2018, defendants ARM Inc., and ARM Holdings PLC filed a motion to 23 dismiss plaintiff’s complaint and/or a motion for a more definitive statement, and a motion to 24 declare plaintiff a vexatious litigant. (ECF Nos. 7 & 8.) Those motions are noticed for hearing 25 before the undersigned on November 16, 2018. 26 Defendants are advised that the court is required to screen complaints brought by parties 27 proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 28 1122, 1129 (9th Cir. 2000) (en banc). “‘A district court may deny leave to proceed in forma 1 1 pauperis at the outset if it appears from the face of the proposed complaint that the action is 2 frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) 3 (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)); see also 4 McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th Cir. 2014) (“the 5 district court did not abuse its discretion by denying McGee’s request to proceed IFP because it 6 appears from the face of the amended complaint that McGee’s action is frivolous or without 7 merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court 8 to examine any application for leave to proceed in forma pauperis to determine whether the 9 proposed proceeding has merit and if it appears that the proceeding is without merit, the court is 10 11 bound to deny a motion seeking leave to proceed in forma pauperis.”). The court must dismiss an in forma pauperis case at any time if the allegation of poverty is 12 found to be untrue or if it is determined that the action is frivolous or malicious, fails to state a 13 claim on which relief may be granted, or seeks monetary relief against an immune defendant. See 14 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an arguable basis in law or 15 in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 16 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a complaint as frivolous 17 where it is based on an indisputably meritless legal theory or where the factual contentions are 18 clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 19 Here, the undersigned has already dismissed plaintiff’s complaint. Thus, there is no 20 complaint to dismiss nor one from which the court could evaluate if plaintiff is vexatious. And 21 the time for plaintiff to file an amended complaint has not run. If plaintiff files an amended 22 complaint, without paying the filing fee, the undersigned will then screen the amended complaint 23 pursuant to the statute. See 28 U.S.C. § 1915(e)(2). 24 If the undersigned finds that the amended complaint is not frivolous or malicious, states a 25 claim on which relief may be granted, and does not seek monetary relief against an immune 26 defendant, the undersigned will grant plaintiff’s motion for leave to proceed in forma pauperis, 27 and order service upon the appropriate defendants. If defendant ARM Inc., or defendant ARM 28 Holdings PLC are named in the amended complaint and the undersigned finds service of the 2 1 amended complaint appropriate on either defendant, that defendant may then bring a renewed 2 motion to dismiss and/or a motion to declare plaintiff’s vexatious. At this time, however, 3 defendants’ motions are premature. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Defendants’ October 18, 2018 motion to dismiss (ECF No. 7) and motion to declare 6 7 8 plaintiff vexatious (ECF No. 8) are denied without prejudice to renewal; and 2. The November 16, 2018 hearing of defendants’ motions is vacated. Dated: October 18, 2018 9 10 11 12 13 14 15 16 17 18 19 20 21 DLB:6 DB/orders/orders.pro se/bruzzone0865.mtd.pm.ord 22 23 24 25 26 27 28 3

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