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