Tindal v. Accounts Receivable Eagan Accounting Services

Filing 11

ORDER DISMISSING CASE. Signed by Judge Elizabeth D Laporte on 5/17/2013. (Attachments: # 1 Certificate/Proof of Service)(knm, COURT STAFF) (Filed on 5/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CONCORDIA D. TINDAL,
Plaintiff,

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United States District Court
For the Northern District of California

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No. C -13-01684 EDL
ORDER DISMISSING CASE

v.
ACCOUNTS RECEIVABLE EAGAN
ACCOUNTING SERVICES,

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Defendant.
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Plaintiff filed this action on April 12, 2013, and filed an Application to Proceed In Forma
Pauperis on the same day. On April 24, 2013, Plaintiff filed a Consent to Proceed Before a United
States Magistrate Judge. On April 26, 2013, Plaintiff re-filed her Consent to Proceed Before a
United States Magistrate Judge with the following handwritten note: “4-25-13. Please be informed
that I want to change from consent to proceed before a United States Magistrate Judge to United
States District Court Judge of Northern District of California.” On April 29, 2013, but before
Plaintiff’s April 26, 2013 filing was officially filed on the Court’s docket, the Court granted
Plaintiff’s Application to Proceed In Forma Pauperis and Dismissed the Complaint with Leave to
Amend.
On May 1, 2013, the Court issued an order regarding Plaintiff’s apparent withdrawal of
consent to magistrate judge jurisdiction. The Court ordered that if Plaintiff believed that there were
extraordinary circumstances warranting withdrawal of consent at this time, she could file a brief
setting out those extraordinary circumstances. Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993)
(“Once a civil case is referred to a magistrate judge under section 636(c), the reference can be
withdrawn by the court only ‘for good cause shown on its own motion, or under extraordinary
circumstances shown by any party.’”). In May 13, 2013, Plaintiff filed a brief stating: “I don’t think

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I have extraordinary circumstances to withdraw from the magistrate judge to US district court

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judge.” See Docket No. 10 at 1-2. Plaintiff also stated that: “I am staying with the magistrate

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judge.” Id. at 2. Thus, there has been no showing of extraordinary circumstances to withdraw

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consent.
In the Court’s April 29, 2013 Order granting Plaintiff’s application to proceed in forma

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pauperis, the Court dismissed Plaintiff’s complaint with leave to amend. On May 13, 2013, Plaintiff

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filed an amended complaint. Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss an

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action that fails to state a claim upon which relief may be granted. Here, the Court is unable to

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discern any legally cognizable claim in Plaintiff’s amended complaint. In her amended complaint,

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United States District Court
For the Northern District of California

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Plaintiff agrees that she owes $4,915.00 to the Postal Service and she acknowledges the validity of

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the Postal Service’s claim to the debt. Those facts likely preclude a claim against the Postal Service

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based on the debt. Also, Plaintiff alleges that at some point, her supervisor made a mistake in

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handling her advance sick leave request, but Plaintiff has not provided a legal basis for any claim

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against the Postal Service or any department of the Postal Service based on the alleged mistake.

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Plaintiff states that her claim is to have the $4,915.00, plus the installment payments she has made

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on that debt in the amount of $2,663.84, returned to her. However, Plaintiff has failed to base her

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claim for relief on any legal claims against the Postal Service or any department of the Postal

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Service. The Court appreciates that Plaintiff has serious health issues and financial difficulties, but

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she has failed to include in her complaint a “short and plain statement of the claim showing that the

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pleader is entitled to relief” as required by Federal Rule of Civil Procedure 8(a)(2). Because

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Plaintiff has had an opportunity to amend her complaint, the Court dismisses this action with

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prejudice. The clerk shall close the file.

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IT IS SO ORDERED.
Dated: May 17, 2013
ELIZABETH D. LAPORTE
United States Chief Magistrate Judge

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