O'Neal v. Department of Justice

Filing 37

Opinion and Order - Defendant's motion to strike the second amended complaint (Dkt. 35 ) is GRANTED. Signed on 3/25/2016 by Judge Michael H. Simon. (mja) (Main Document 37 replaced on 3/25/2016) (sm).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANTHONY L.P. O’NEAL, JR.,
Plaintiff,

Case No. 3:15-cv-00773-SI
OPINION AND ORDER

v.
ROD UNDERHILL, JONATHAN H.
TUCKER, AUDREY B. HIRSCH, and
OREGON DEPARTMENT OF JUSTICE,
Defendants.
Anthony L.P. O’Neal, Jr., 4605 NE Killingsworth #3, Portland, Oregon, 97218, pro se.
Ellen F. Rosenblum, Attorney General, and Craig M. Johnson, Assistant Attorney General,
Department of Justice, 1162 Court Street NE, Salem, Oregon 97301. Of Attorneys for
Defendants.

Michael H. Simon, District Judge.
Plaintiff Anthony L.P. O’Neal, Jr., (“O’Neal” or “Plaintiff”) filed a Second Amended
Complaint (“SAC”) (Dkt. 34) on February 18, 2016. In the Court’s previous Opinion and Order
(Dkt. 30), the Court granted Defendants’ motion to dismiss O’Neal’s First Amended Complaint
without prejudice. The Court gave O’Neal leave to file his SAC by January 8, 2016, and affect
service of the summons and SAC by February 8, 2016. Because O’Neal filed the SAC more than
PAGE 1 – OPINION AND ORDER

a month after the deadline imposed by the Court and had not yet affected proper service on the
named defendants as of March 7, 2016, Defendants moved for an order striking the SAC under
Federal Rule of Civil Procedure 15.
O’Neal does not oppose Defendants’ motion. In fact, on March 16, 2016, Defendants
submitted a declaration from their attorney Mr. Craig Johnson stating that O’Neal sent
Mr. Johnson an email that indicates that O’Neal no longer wishes to pursue litigation. Dkt. 36
¶ 3. Defendants submitted a copy of the email to the Court. Id. at 3. The email states that O’Neal
does not desire further to pursue “these matters” because “all collection activities have stopped.”
Id. The email also explains that O’Neal will “resubmit any civil action with representation” if the
need arises. Id.
Federal Rule of Civil Procedure 15 governs the manner in which a party may amend its
pleading during litigation. See generally Fed. R. Civ. P. 15. In pertinent part, Rule 15 permits a
plaintiff to amend its pleading “once as a matter of course” within twenty-one days after service,
or “if the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever
is earlier.” Fed. R. Civ. P. 15(a)(1)(A)-(B). Otherwise, a party wishing to amend its pleading
must obtain either “the opposing party’s written consent or the court’s leave.” Fed. R. Civ.
P. 15(a)(2). “The court should freely give leave when justice so requires.” Id.
A district court may, “on its own initiative,” dismiss a complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). Wong v. Bell, 642 F.2d 359, 361
(9th Cir. 1981). The court need not give the plaintiffs notice of the court’s intention to invoke
Rule 12(b)(6) when it is clear that the “[p]laintiffs cannot possibly win relief under the statute
they have urged.” Id. at 362.

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Because O’Neal not only failed to file the SAC and affect service by the deadlines but
also now indicates that he no longer wishes to pursue litigation, justice does not require giving
O’Neal leave untimely to file the SAC. Accordingly, the Court grants Defendants’ motion to
strike the SAC (Dkt. 35). O’Neal concedes that the circumstances that led him to file the SAC no
longer exist and states that he has no intention of continuing to prosecute this case. Because this
is the third time that O’Neal has filed a complaint in this case without either stating a claim or
showing that he intends diligently to pursue his claims, the Court finds that leave to amend
would be futile. The Court therefore dismisses the case with prejudice. See DeSoto v. Yellow
Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (“A district court does not err in denying
leave to amend where the amendment would be futile.”).
IT IS SO ORDERED.
DATED this 25nd day of March, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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