A.C.L. Computers and Software, Inc. v. Federal Express Corporation

Filing 38

ORDER OF DISMISSAL. Signed by Judge Haywood S. Gilliam, Jr. on 6/13/2016. (ndrS, COURT STAFF) (Filed on 6/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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A.C.L. COMPUTERS AND SOFTWARE,
INC.,
Plaintiff,

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ORDER OF DISMISSAL
Re: Dkt. Nos. 36 , 37

v.

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FEDERAL EXPRESS CORPORATION,

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United States District Court
Northern District of California

Case No. 15-cv-04202-HSG

Defendant.

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On March 4, 2016, the Court granted Defendant Federal Express’s motion to dismiss the

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complaint as to Federal Express. Dkt. No. 22. In its March 4th order, the Court dismissed

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Plaintiff’s California negligence claim with prejudice as barred by the Airline Deregulation Act.

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However, the Court explicitly granted Plaintiff leave to amend its breach of contract claim, stating:

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The Court GRANTS FedEx’s motion to dismiss Plaintiff’s breach of
contract claim. If it has a Rule 11 basis for doing so, Plaintiff may
amend its complaint to assert that the contract of carriage itself or
any applicable federal laws permit Plaintiff to bring a breach of
contract claim against FedEx.

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Id. at 8. Despite the Court’s leave to amend, Plaintiff filed a notice of appeal on April 1, 2016.

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Dkt. No. 25.

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Given that an order dismissing a complaint with leave to amend is not appealable, see

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WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997), the Court held a case

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management conference on April 19, 2016. Dkt. No. 31. During the case management

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conference, Plaintiff informed the Court that it wishes to immediately appeal the Court’s dismissal

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of Federal Express rather than amend the complaint or proceed against the remaining Doe

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Defendants. See id. In light of this representation, the Court instructed Plaintiff to file the

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necessary documents by May 3, 2016, to obtain a final appealable judgment. Id.
On May 3, 2016, Plaintiff sought certification of the dismissal of its claims against Federal

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Express under Rule 54(b), while representing that it believed that it could not proceed against the

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Doe Defendants until the Ninth Circuit issued a decision regarding Federal Express’s dismissal.

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Dkt. No. 32. On May 31, 2016, the Court issued an order denying Plaintiff’s motion for entry of

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final judgment. Dkt. No. 33. In its May 31st order, the Court directed Plaintiff to file notice with

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the Court within three days, indicating whether it would like to (1) dismiss the Doe Defendants

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without prejudice and decline amendment of its complaint in favor of appeal; (2) amend its breach

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of contract claim as to Federal Express; or (3) proceed against the Doe Defendants without Federal
Express. Id. at 5. Plaintiff failed to file the required notice with the Court, and on June 7, 2016,

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United States District Court
Northern District of California

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the Court issued an order to show cause why the Court should not dismiss the action with

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prejudice in light of Plaintiff’s failure to respond to the Court’s May 31st order. Dkt. No. 34. In

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its June 10, 2016, response to the Court’s order to show cause, Plaintiff confirms that it will not

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amend its complaint and intends to appeal the Court’s dismissal of Defendant Federal Express

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instead. Dkt. No. 36. Plaintiff subsequently dismissed the Doe Defendants without prejudice.

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Dkt. No. 37.

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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

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shall enter judgment in favor of Defendant Federal Express. Both parties shall bear their own

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costs of suit.

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IT IS SO ORDERED.
Dated: June 13, 2016
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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