The Hamline Community Garden et al v. The City of San Jose

Filing 11

Order by Hon. Lucy H. Koh granting 10 Motion to Dismiss.(lhklc1, COURT STAFF) (Filed on 2/16/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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THE HAMLINE COMMUNITY GARDENS,
KAREN MCCREDDIN, and
ANN CHARLOTTE JOSEPH
Plaintiff,
v.
THE CITY OF SAN JOSE,
Defendant.

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Case No.: 12-CV-000464-LHK
ORDER DISMISSING CASE WITHOUT
PREJUDICE

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Before the Court is Plaintiff Karen McCreddin’s and Ann Charlotte Joseph’s (hereinafter

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“individual Plaintiffs”) motion to dismiss without prejudice. For the reasons set forth below, the

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Court GRANTS the motion.

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On January 30, 2012, Plaintiff the Hamline Community Gardens, Karen McCreddin, and

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Ann Charlotte Joseph (collectively “Plaintiffs”) filed a complaint, ECF No. 1, and an ex parte

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motion for a temporary restraining order (“TRO”). ECF No. 2. The Court denied the motion for

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an ex parte TRO without prejudice for failure to comply with Federal Rules of Civil Procedure 11

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and 65. ECF No. 8. Neither the complaint nor the motion was signed, as required by Rule 11, and

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Plaintiffs failed to set forth “specific facts in an affidavit or a verified complaint clearly show[ing]

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that immediate and irreparable injury, loss, or damage will result to the movant before the adverse

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party can be heard in opposition,” as required by Rule 65. Id. at 3. The Court gave Plaintiffs an

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opportunity to cure these defects; set a briefing schedule; and scheduled a hearing on the motion

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for March 1, 2012. Id. at 4-5.

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Case No.: 12-CV-00464-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE

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Plaintiffs failed to cure the defects in their pleadings and original motion and instead the

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individual Plaintiffs filed the instant motion to dismiss on February 8, 2012. ECF No. 10.

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Pursuant to Federal Rule of Civil Procedure 41(a), a “plaintiff may dismiss an action without a

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court order by filing a notice of dismissal before the opposing party serves either an answer or a

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motion for summary judgment.” Defendant has filed neither an answer nor a motion for summary

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judgment. Accordingly, the individual Plaintiffs may dismiss this action without a court order.

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Plaintiff Hamline Community Gardens does not join the individual Plaintiffs. However,
Plaintiff Hamline Community Garden has failed to cure the defects that run afoul of Federal Rules

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of Civil Procedure 11 and 65 discussed above and in the Court’s prior order, ECF No. 8.

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United States District Court
For the Northern District of California

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Moreover, pursuant to Civil Local Rule 3-9, “A corporation, unincorporated association,

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partnership or other such entity may appear only through a member of the bar of this Court.” The

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Hamline Community Gardens is currently appearing pro se, in violation of this rule. Accordingly,

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this action is dismissed without prejudice as to Plaintiff Hamline Community Gardens as well.

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For the foregoing reasons, the individual Plaintiffs’ motion is GRANTED, and the above
captioned matter is DISMISSED, without prejudice. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: February 16, 2012

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_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 12-CV-00464-LHK
ORDER DISMISSING CASE WITHOUT PREJUDICE