Perry v. Cashcall, Inc. et al

Filing 97

ORDER DISMISSING WITHOUT PREJUDICE SECOND AMENDED COMPLAINT, ALLOWING PLAINTIFF UNTIL JULY 7, 2014 TO FILE A THIRD AMENDED COMPLAINT, AND DENYING REASSIGNMENT. Signed by Judge Laurel Beeler on 6/16/2014. (lblc2, COURT STAFF) (Filed on 6/16/2014)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division EDGAR PERRY, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 13-02369 LB Plaintiff, v. 13 CASHCALL, INC., et al., 14 Defendants. 15 16 ORDER DISMISSING WITHOUT PREJUDICE SECOND AMENDED COMPLAINT, ALLOWING PLAINTIFF UNTIL JULY 7, 2014 TO FILE A THIRD AMENDED COMPLAINT, AND DENYING REASSIGNMENT [Re: ECF Nos. 86, 91, 92, 95] _____________________________________/ 17 18 The court granted Mr. Perry leave to file a Second Amended Complaint by April 7, 2014 to re- 19 allege his breach of contract claim against CashCall. Amended 3/17/2014 Order, ECF No. 86.1 On 20 March 28, 2014, Mr. Perry appealed the court’s order to the United States Court of Appeals for the 21 Ninth Circuit. Notice of Appeal, ECF No. 87. But on May 21, 2014, the Ninth Circuit panel 22 dismissed his appeal for lack of jurisdiction because the order he challenged (the court’s Amended 23 3/17/2014 Order granting Defendants’ motions to dismiss) is not final or appealable. Order of 24 USCA, ECF No. 91.2 25 26 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document. 2 This is because an order is not appealable unless it disposes of all claims as to all parties or judgment is entered in compliance with Rule 54, see Fed. R. Civ. P 54(b); Chacon v. Babcock, 640 C 13-02369 LB ORDER 1 In light of Mr. Perry’s appeal and the Ninth Circuit’s order, and to clarify the required next steps, 2 the court provided Mr. Perry until June 9, 2014 to file a Second Amended Complaint to re-allege his 3 breach of contract claim against CashCall. See Order, ECF No. 92. Mr. Perry failed to meet this 4 deadline and filed his Second Amended Complaint on June 11, 2014. See generally, Docket; 5 Second Amended Complaint, ECF No. 95. In addition, Mr. Perry failed to limit the Second 6 Amended Complaint to the breach of contract claim against CashCall. Id. Rather, Mr. Perry filed a 7 Second Amended Complaint against all four defendants, asserting claims that were previously 8 dismissed by the court with prejudice. Id. 9 Mr. Perry also requests that this case be reassigned to a District Court Judge. However, Mr. (Plaintiff), ECF No. 9; Consent (CashCall), ECF No. 13. As such, the Court DENIES Mr. Perry’s 12 For the Northern District of California Perry has already consented to the undersigned's jurisdiction. See Motion, ECF No. 94; Consent 11 UNITED STATES DISTRICT COURT 10 request for reassignment. 13 Because Mr. Perry is a pro se litigant, the court will provide him with one more opportunity to 14 file an amended complaint that complies with the court’s March 17, 2014 order. Mr. Perry has until 15 July 7, 2014 to file a Third Amended Complaint. In that Third Amended Complaint, Mr. Perry may 16 only re-allege his breach of contract claim against CashCall. He may not reallege the claims he 17 brought against the State of California, First Bank, and PFSA, or his TILA claim against CashCall, 18 because the court already dismissed those claims with prejudice. Should Mr. Perry fail to file a 19 Third Amended Complaint timely and in compliance with the above-mentioned directions, the court 20 may dismiss his action for failing to prosecute it. 21 22 IT IS SO ORDERED. Dated: June 16, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 23 24 25 26 27 28 F.2d 221, 222 (9th Cir. 1981), and the court’s Amended 3/17/2014 Order dismissed Mr. Perry’s breach of contract claim against CashCall without prejudice and allowed him to file a Second Amended Complaint to re-allege this claim, see WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (dismissal of complaint with leave to amend is not appealable). C 13-02369 LB ORDER 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?