Merritt et al v. Mckenney et al

Filing 72

ORDER DISMISSING WITH PREJUDICE. Signed by Judge JEFFREY S. WHITE on 11/1/13. (jjoS, COURT STAFF) (Filed on 11/1/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SALMA MERRITT, ET AL,
Plaintiff,

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ORDER DISMISSING WITH
PREJUDICE

v.
(Re: Docket No. 70)

For the Northern District of California

United States District Court

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No. C 13-01391 JSW

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KEVIN E. MCKENNEY, ET AL,

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Defendant.
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On August 27, 2013, the Court granted Defendants’ motion to dismiss. In that order, the

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Court also denied Plaintiffs’ motion for leave to file a Second Amended Complaint which

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proposed to add claims against Georgia Ku and amended the claims against the Santa Clara

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County Superior Court. However, the Court gave Plaintiffs until September 27, 2013 to file a

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motion for leave to file a Third Amended Complaint. Instead of filing such a motion, on

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August 27, 2013, Plaintiffs filed a Notice of Appeal. Plaintiffs did not file a motion for leave to

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amend on September 27, 2013, and given the pendency of the appeal, the Court neither

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dismissed the case nor issued an Order to Show Cause to Plaintiffs regarding the failure to

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comply with that deadline.
On October 30, 2013, Plaintiffs filed a Motion for Certification of Appeal, which they

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noticed for hearing on November 15, 2013. The Court concludes that a response from

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Defendants is not required, and it finds this motion suitable for disposition on the papers, and it

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VACATES the hearing. See N.D. Civ. L.R. 7-1(b).

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//

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The Court notes that Plaintiffs did not notice the hearing in accordance with Northern

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District Civil Local Rule 7-2(a), which requires motions to be noticed for hearing not less than

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35 days after service of the motion. Plaintiffs also did not file a motion to have the motion

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heard on shortened time demonstrating why briefing on an expedited schedule was necessary.

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Although the Court could deny the motion based on these procedural defects, the Court

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concludes that to do so would not be in the interests of judicial efficiency or in the interests of

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justice.

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In their motion, Plaintiffs state that they seek relief, because the Ninth Circuit “recently

(Mot. at 1:24-25.) Indeed, on October 31, 2013, the Court received an Order from the Ninth

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For the Northern District of California

refused appeal because leave to amend was ordered and that no final judgment was entered.”

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United States District Court

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Circuit dismissing the appeal for lack of jurisdiction. (Docket No. 71.) Plaintiffs also state that

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they seek entry of judgment on the basis that they have nothing further to add to the proposed

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Second Amended Complaint. (See Mot. at 2:4-11, 4:4-8.) In sum, Plaintiffs ask this Court to

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enter judgment, so that they may proceed to appeal. In light of Plaintiffs’ pro se status, the

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Court shall construe Plaintiffs’ motion as a statement of their intent to stand on the allegations

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in their Second Amended Complaint and a statement that they do not intend to seek leave to file

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a Third Amended Complaint.

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Accordingly, the Court HEREBY DISMISSES this case with prejudice for the reasons

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set forth in its Order dated August 27, 2013, including its reasons for denying Plaintiffs leave to

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file a Second Amended Complaint against Georgia Ku and the Santa Clara County Superior

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Court. The Court shall enter a separate judgment, and the Clerk shall close this file.

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IT IS SO ORDERED.
Dated: November 1, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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