Thompson v. Masters

Filing 20

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Magistrate Judge Kandis A. Westmore on 6/7/17. (Attachments: # 1 Certificate/Proof of Service)(sisS, COURT STAFF) (Filed on 6/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRACEY N. THOMPSON,
Plaintiff,

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ORDER DISMISSING CASE WITHOUT
PREJUDICE

v.
STEVE MASTERS,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-04704-KAW

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I.

INTRODUCTION

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On August 15, 2016, Plaintiff Tracey N. Thompson filed the instant suit against Defendant

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Steve Masters, alleging that she owns the copyright in "Surround Sound" and that Defendant owes

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her royalties on the logo. (Compl. at 1, Docket No. 1.) Plaintiff also filed an application to

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proceed in forma pauperis, which the Court granted on August 19, 2017. (Dkt. Nos. 2, 5.) On

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February 22, 2017, pursuant to 28 U.S.C. § 1915(e)(2), the Court dismissed Plaintiff's complaint

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with leave to amend, finding that: (1) Plaintiff failed to identify any cause of action, and (2)

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Plaintiff failed to adequately plead a viable claim. (Dkt. No. 16 at 2-3.) The Court gave Plaintiff

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30 days to file an amended complaint, warning that "[f]ailure to file a first amended complaint

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within 30 days of this order may result in dismissal of this action for failure to prosecute." (Dkt.

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No. 16 at 3.)

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II.

DISCUSSION

Federal Rule of Civil Procedure 41(b) permits the involuntary dismissal of an action or

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claim for a plaintiff's failure to prosecute. See Link v. Wabash R. Co., 370 U.S. 626, 630-31

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(1962) ("authority of a court to dismiss sua sponte for lack of prosecution has generally been

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considered an 'inherent power'"). Unless otherwise stated, a dismissal under Rule 41(b) "operates

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as an adjudication on the merits." Fed. R. Civ. P. 41(b).

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In the instant case, Plaintiff was ordered to submit an amended complaint within 30 days

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of the order of dismissal. (Dkt. No. 16 at 3.) Plaintiff's amended complaint was therefore due on

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March 24, 2017. Plaintiff did not file an amended complaint. Accordingly, on April 6, 2017, the

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Court issued an order to show cause, requiring that Plaintiff, on or before April 28, 2017, file an

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amended complaint that corrected the deficiencies identified by the Court's February 22, 2017

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order, and respond to the order to show cause by explaining why she did not file a timely amended

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complaint. (Dkt. No. 17.)

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On April 13, 2017, the Court received a letter dated April 10, 2017, which stated that

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Plaintiff was severely disabled. (Dkt. No. 19.) Plaintiff requested a telephone conference or
hearing at her apartment. Plaintiff also stated that the request was her amended complaint, even

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United States District Court
Northern District of California

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though the request did not plead any facts or identify any causes of action related to her case.

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The Court finds that Plaintiff has failed to comply with the Court's order to file an

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amended complaint because the April 10, 2017 request for a telephonic conference is not a

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complaint. Even if the Court was to consider the request a complaint, the request fails to correct

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any of the deficiencies identified by the Court's February 22, 2017 order. Specifically, the request

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fails to identify any causes of action, contrary to the requirements of Federal Rule of Civil

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Procedure 10. (See Dkt. No. 16 at 2.) The request also fails to state any facts in support of

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Plaintiff's claim. Assuming Plaintiff is still claiming royalties from the "Surround Sound" logo,

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Plaintiff still does not explain why she is owed any royalties on the copyright after Mr. Dholby

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bought the copyright, why she brings suit against Defendant Masters, why Defendant Masters

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owns her royalties when Mr. Dholby has the copyright, what court help is required for Defendant

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Masters, what legal basis there is for seeking such help, or why Plaintiff is entitled to request help

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on Defendant Master's behalf. (See id. at 2-3.)

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Because Plaintiff has failed to file an amended complaint, as required by the Court's

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February 22, 2017 order and April 6, 2017 order to show cause, the Court DISMISSES Plaintiff's

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case without prejudice, for failure to prosecute.

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III.

CONCLUSION

For the reasons stated above, the Court DISMISSES Plaintiff's case without prejudice, for
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failure to prosecute.
IT IS SO ORDERED.
Dated: June 7, 2017
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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