Oliphant v. Moynihan et al

Filing 64

ORDER. Signed by Judge Haywood S. Gilliam, Jr. on 7/22/2015. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 7/22/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEONARD VAUGHN OLIPHANT,

Case No. 15-cv-01187-HSG

Plaintiff,
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v.

ORDER

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BRIAN T. MOYNIHAN, et al.,

Re: Dkt. Nos. 57, 60

Defendants.

United States District Court
Northern District of California

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On June 4, 2015, the Court granted Defendants’ motions to dismiss Plaintiff’s Amended

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Complaint on the ground that the Amended Complaint failed to allege facts supporting personal

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jurisdiction. Dkt. No. 55. In short, Plaintiff has sued four individuals—all of whom either work

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for Bank of America or worked at a law firm allegedly engaged by Bank of America—without

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pleading how personal jurisdiction is appropriate over the Defendants as individuals (as opposed

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to Bank of America as a company). Id. The Court provided Plaintiff over three weeks to file a

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Second Amended Complaint to address this deficiency. Id. at 5. However, given the extensions

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of time already provided to Plaintiff, see Dkt. Nos. 23 and 35, and the need to efficiently manage

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its docket, the Court informed Plaintiff that the Court would not consider a motion to extend this

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deadline and that failure to file a timely Second Amended Complaint would result in dismissal

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with prejudice. See Dkt. No. 55 at 5.

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Despite these clear instructions, Plaintiff did not file a Second Amended Complaint by the

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June 26, 2015 deadline, or at any time thereafter. Instead, Plaintiff filed what he termed a

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“Request Declaratory Judgment Plaintiff’s Objection to Court’s Order Granting Motions to

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Dismiss; Notice of Harm and Damage and Distress of Bond.” Dkt. No. 57 at 1. Plaintiff’s

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submission improperly seeks to reargue (and raise new arguments) concerning the question of

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personal jurisdiction resolved by the Court’s June 4th order. See id. Plaintiff requests that the

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Court vacate its order, or, in the alternative, correct the order “so as to pave the way for an orderly

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appeal.” Id. at 9. In that submission, Plaintiff affirmatively represented that he “will not be

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amending his Amended Claim . . . .” Id.
Accordingly, there is currently no operative complaint in this action and the Court must

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decide whether to permit Plaintiff another opportunity to amend. Although a court will generally

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grant leave to amend a dismissed complaint, leave to amend may be denied “due to ‘undue delay,

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bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

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amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

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the amendment, [and] futility of amendment.’” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d

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522, 532 (9th Cir. 2008) (citation omitted). In this case, Plaintiff was afforded the opportunity to

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United States District Court
Northern District of California

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amend his pleading. Dkt. No. 55; see also Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540

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F.3d 1049, 1072 (9th Cir. 2008) (“[T]he district court’s discretion to deny leave to amend is

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particularly broad where plaintiff has previously amended the complaint.”) (citation omitted). He

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refused to do so. Dkt. No. 57 at 9; see also Zucco Partners, LLC v. Digimarc Corp., 552 F.3d

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981, 1007 (9th Cir. 2009), as amended (Feb. 10, 2009) (“The fact that Zucco failed to correct these

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deficiencies in its Second Amended Complaint is ‘a strong indication that the plaintiffs have no

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additional facts to plead.’”) (citation omitted). Plaintiff’s outright refusal to amend in

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contravention of the Court’s order strongly suggests that he has “made [his] best case and [has]

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been found wanting.” Id.
Pursuant to the Court’s June 4, 2015 order, Plaintiff’s Amended Complaint is

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DISMISSED WITH PREDUJICE.1

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IT IS SO ORDERED.

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Dated: July 22, 2015

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________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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This Order also terminates Defendants’ Motion to Dismiss for Lack of Prosecution, Dkt. No. 60,
which is now moot in light of the Court’s ruling.
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