Topete et al v. Ramos Furniture

Filing 60

**DISREGARD, E-FILED ON THE WRONG CASE.** ORDER OF DISMISSAL. Signed by Judge Haywood S. Gilliam, Jr. on 2/10/2016. (ndrS, COURT STAFF) (Filed on 2/10/2016) Modified on 2/10/2016 (ndrS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TUCKER DURNFORD,

Case No. 15-cv-00413-HSG

Plaintiff,
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ORDER OF DISMISSAL

v.
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MUSCLEPHARM CORP.,
Defendant.

United States District Court
Northern District of California

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On December 18, 2015, the Court granted Defendant MusclePharm Corp.’s motion to

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dismiss Plaintiff Tucker Durnford’s first amended class action complaint. Dkt. No. 52. The Court

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granted Plaintiff leave to file an amended complaint within 21 days. Id. The deadline for Plaintiff

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to file his second amended complaint passed, and on January 20, 2016, the Court issued an order

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to show cause why the case should not be dismissed for failure to prosecute. Dkt. No. 53. In his

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January 22, 2016, response to the Court’s order to show cause, Plaintiff indicated that he will not

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amend his complaint and intends to appeal the Court’s dismissal of his first amended complaint.

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Dkt. No. 53.

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When a plaintiff has declined amendment of his complaint in favor of appealing the

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dismissal, the court should dismiss the action with prejudice under Federal Rule of Civil

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Procedure 12(b)(6). See Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004).

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Accordingly, this action is DISMISSED with prejudice under Rule 12(b)(6). The Clerk
shall enter judgment in favor of Defendant. Both parties shall bear their own costs of suit.

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IT IS SO ORDERED.
Dated: 2/10/2016
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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