Bryan v. Carlsbad, City of et al
ORDER Requiring Plaintiff to Amend or Abandon Her Claims. The Court sua sponte extends the deadline for Bryan to seek leave to amend to 4/26/2018. Signed by Judge Larry Alan Burns on 4/4/2018.(All non-registered users served via U.S. Mail Service)(jdt)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 17cv697-LAB (BLM)
CITY OF CARLSBAD, et al.,
ORDER REQUIRING PLAINTIFF
TO AMEND OR ABANDON HER
On March 20, the Court denied Plaintiff Catherine Bryan’s motion for a
preliminary injunction, her motion for leave to file a supplemental complaint, and
her motion for leave to add party defendants. That same order dismissed some of
Bryan’s claims with prejudice, but others without prejudice. It gave her until April
5, 2018, to seek leave to amend. Bryan then interlocutorily appealed the denial of
her motions. (Docket no. 39.) Her notice of appeal also purports to appeal the
Court’s non-final dismissal of her complaint.
As a general rule, the filing of a notice of appeal divests the district court of
jurisdiction over the matters appealed. See Natural Resources Defense Council,
Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). But a notice
of appeal from a plainly unappealable order does not do so. Estate of Conners by
Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993) (citing Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982)). Where such a defect is clear to
the district court, it may disregard the purported notice of appeal and proceed with
the case. See Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966)).
An order dismissing some claims with prejudice but contemplating the
possibility of further amendment is not final or appealable merely because the
plaintiff chooses not to amend. See WMX Technologies, Inc. v. Miller, 104 F.3d
1133, 1136 (9th Cir. 1997). Bryan has not filed anything suggesting that she
intends to stand on her complaint, or that she intends to abandon the claims that
were dismissed without prejudice and appeal only those that were dismissed with
prejudice. See id.; Lopez v. City of Needles, 95 F.3d 20, 22 (9th Cir. 1996).
In other words, the Court’s order of dismissal is not yet final, and is not
appealable. Bryan may, if she wishes, file a notice either electing to stand on her
complaint, or abandoning those claims that were dismissed without prejudice, and
the Court will dismiss the case. If she does not do so, however, she should
continue litigating her claims.
In the interest of deciding Bryan’s claims on the merits if possible, the Court
sua sponte extends the deadline for Bryan to seek leave to amend, from April 5 to
April 26, 2018. If she files a motion for leave to amend, Defendants may file an
opposition within 21 calendar days of the date she does so. No reply brief is to
be filed without leave. Bryan’s motion must comply with the Court’s previous order.
(See Docket no. 38 at 17:28–18:16.) Failure to seek leave to amend within the time
permitted may result in this action’s dismissal for failure to prosecute.
IT IS SO ORDERED.
Dated: April 4, 2018
Hon. Larry Alan Burns
United States District Judge
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