Shetty v. America's Wholesale Lender et al

Filing 98

ORDER DISMISSING ACTION WITH PREJUDICE. Signed by Judge Beth Labson Freeman on 5/7/2019. (blflc1S, COURT STAFF) (Filed on 5/7/2019)

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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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NIKI-ALEXANDER SHETTY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-05846-BLF
ORDER DISMISSING ACTION WITH
PREJUDICE

v.
THE BANK OF NEW YORK MELLON, et
al.,
Defendants.

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On March 25, 2019, the Court dismissed Plaintiff’s second amended complaint (“SAC”)

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with leave to amend in part and without leave to amend in part. See Order Adopting Report and

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Recommendation in Part, ECF 94. Plaintiff was granted until April 15, 2019 to file a third amended

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complaint. See id.

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On April 15, 2019, Plaintiff filed a motion to enlarge time to file an amended pleading,

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seeking a three-week extension of his filing deadline. See Ex Parte Motion to Enlarge Time by

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Three Weeks, ECF 95. The Court granted the request and directed Plaintiff to file any third

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amended complaint on or before May 6, 2019. See Order Granting Plaintiff’s Motion to Enlarge

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Time, ECF 96. The Court ordered that if Plaintiff elects not to amend, but to allow the Court’s

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Order Adopting Report and Recommendation in Part to ripen into a final, appealable order, he

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shall file a notice of such intent on or before May 6, 2019. See id.

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On May 6, 2019, Plaintiff’s counsel filed a declaration notifying the Court that he has sent

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Plaintiff several emails communicating the contents of the Court’s orders, and also has left

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multiple voice mail messages for Plaintiff. See Declaration of Gary Victor Dubin, ECF 97.

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Counsel represents that Plaintiff did not respond to any of these communications and that counsel

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interprets the lack of response to mean that Plaintiff does not intend to amend his pleading. See id.

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Based on the representation of Plaintiff’s counsel, and Plaintiff’s failure to file an amended

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pleading, the Court DISMISSES the action on the merits and WITH PREJUDICE for the reasons

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set forth in the Court’s prior Order Adopting Report and Recommendation in Part.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: May 7, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge

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