Phi v. Riverwalk Holdings, LTD.

Filing 9

ORDER of Dismissal. ORDERED that the amended complaint 5 and the action aredismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that any pending motions are denied as moot, by Judge Lewis T. Babcock on 10/23/12. (sgrim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02272-BNB
MY PHI,
Plaintiff,
v.
RIVERWALK HOLDINGS, LTD., and
NELSON & KENNARD,
Defendants.

ORDER OF DISMISSAL

Plaintiff, My Phi, initiated this action by filing pro se a complaint titled “FDCPA
and Fraud Complaint” (ECF No. 1) and a Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3). The Court reviewed the submitted
documents, found that they were deficient, and ordered Plaintiff within thirty days to
cure certain deficiencies, including but not limited to filing a complaint and attachment
that were legible.
On September 13, 2012, Ms. Phi filed an amended complaint (ECF No. 5) and
amended Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. On
September 14, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF No. 8)
granting Ms. Phi leave to proceed pursuant to § 1915 and directing her to file within
thirty days a second amended complaint that complied with Rule 10.1 of the Local
Rules of Practice for this Court and Rule 8 of the Federal Rules of Civil Procedure, and
explained why venue is proper in the District of Colorado. The September 14 order

warned Ms. Phi that, if she failed to file the second amended complaint as directed
within the time allowed, the amended complaint and the action would be dismissed
without further notice.
Ms. Phi has failed, within the time allowed, to file the second amended complaint
as directed, or otherwise to communicate with the Court in any way. Therefore, the
amended complaint and the action will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Ms. Phi files a notice of appeal she also must pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the amended complaint (ECF No. 5) and the action are
dismissed without prejudice pursuant to Rule 10.1 of the Local Rules of Practice for this
Court and Rules 8 and 41(b) of the Federal Rules of Civil Procedure for the failure of
Plaintiff, My Phi, to file a second amended complaint that is legible and complies with
the pleading requirements of Rule 8 and the directives of the order of September 14,
2012 (ECF No. 8), and for her failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is

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FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 23rd day of

October

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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