MILLHOUSE v. UNITED STATES OF AMERICA et al

Filing 19

ORDERED THAT: THE CLERK OF COURT IS DIRECTED TO REOPEN THIS MATTER. MILLHOUSES MOTION FOR RECONSIDERATION IS GRANTED. THE COURTS AUGUST 14, 2020 ORDER (ECF NO. 16) WHICH DISMISSED MILLHOUSES CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE BASE D ON HIS FAILURE TO FILE A TIMELY SECOND AMENDED COMPLAINT IS VACATED IN ITS ENTIRETY. MILLHOUSES TIME TO FILE A SECOND AMENDED COMPLAINT AS SET FORTH IN THE COURTS JANUARY 17, 2020 MEMORANDUM AND ORDER (ECF NOS. 12 & 13) AND AS EXTENDED BY THE COUR TS FEBRUARY 28, 2020 ORDER (ECF NO. 16) IS HEREBY EXTENDED. MILLHOUSE MAY FILE A SECOND AMENDED COMPLAINT WITHIN TWENTY-ONE (21) DAYS OF THE DATE OF THIS ORDER. UPON THE FILING OF A SECOND AMENDED COMPLAINT, THE CLERK SHALL NOT MAKE SERVICE UNTIL SO ORDERED BY THE COURT. ALONG WITH A COPY OF THIS ORDER AND ITS ACCOMPANYING MEMORANDUM, THE CLERK OF COURT IS ALSO DIRECTED TO MAIL A COPY OF THE FOLLOWING DOCUMENTS TO MILLHOUSE: (1) THE JANUARY 17, 2020 MEMORANDUM (ECF NO. 12); (2) THE JANUARY 17, 2020 ORDER (ECF NO. 13); (3) THE FEBRUARY 28, 2020 ORDER (ECF NO. 15); AND (4) AN UPDATED COPY OF THE DOCKET SHEET IN THIS MATTER. ETC.. SIGNED BY HONORABLE PETRESE B. TUCKER ON 2/17/2021. 2/17/2021 ENTERED AND COPIES NOT MAILED TO PRO SE.(sg, )

Case 2:19-cv-05139-PBT Document 19 Filed 02/17/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KAREEM HASSAN MILLHOUSE,
Plaintiff,

:
:
:
v.
:
:
UNITED STATES OF AMERICA, et al., :
Defendants.
:

CIVIL ACTION NO. 19-CV-5139

ORDER
AND NOW, this 17th day of February, 2021, upon consideration of Plaintiff Kareem
Hassan Millhouse’s Motion for Reconsideration (ECF No. 17), it is ORDERED that:
1.

The Clerk of Court is DIRECTED to REOPEN this matter.

2.

Millhouse’s Motion for Reconsideration is GRANTED.

3.

The Court’s August 14, 2020 Order (ECF No. 16) which dismissed Millhouse’s

case without prejudice for failure to prosecute based on his failure to file a timely second
amended complaint is VACATED in its entirety.
4.

Millhouse’s time to file a second amended complaint as set forth in the Court’s

January 17, 2020 Memorandum and Order (ECF Nos. 12 & 13) and as extended by the Court’s
February 28, 2020 Order (ECF No. 16) is hereby EXTENDED. Millhouse may file a second
amended complaint within twenty-one (21) days of the date of this Order. The second amended
complaint shall be a complete document that does not rely on the initial Complaint or the
Amended Complaint or other papers filed in this case to state a claim. When drafting his second
amended complaint, Millhouse should be mindful of the Court’s reasons for dismissing the
claims in his Amended Complaint as explained in the Court’s Memorandum and must clearly

Case 2:19-cv-05139-PBT Document 19 Filed 02/17/21 Page 2 of 3

allege facts supporting the Court’s exercise of jurisdiction over this matter. Upon the filing of a
second amended complaint, the Clerk shall not make service until so ORDERED by the Court.
5.

Along with a copy of this Order and its accompanying Memorandum, the Clerk of

Court is also DIRECTED to MAIL a copy of the following documents to Millhouse: (1) the
January 17, 2020 Memorandum (ECF No. 12); (2) the January 17, 2020 Order (ECF No. 13); (3)
the February 28, 2020 Order (ECF No. 15); and (4) an updated copy of the docket sheet in this
matter.
6.

If Millhouse does not wish to further amend his Amended Complaint and instead

intends to stand on his Amended Complaint as originally pled, he may file a notice with the
Court within twenty-one (21) days of the date of this Order stating that intent, at which time the
Court will issue a final order dismissing the case. Any such notice should be titled “Notice to
Stand on Amended Complaint,” and shall include the civil action number for this case. See
Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (“If the plaintiff does not desire to amend, he
may file an appropriate notice with the district court asserting his intent to stand on the
complaint, at which time an order to dismiss the action would be appropriate.” (quoting Borelli v.
City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); In re Westinghouse Sec. Litig., 90 F.3d
696, 703–04 (3d Cir. 1996) (holding “that the district court did not abuse its discretion when
it dismissed with prejudice the otherwise viable claims . . . following plaintiffs’ decision not to
replead those claims” when the district court “expressly warned plaintiffs that failure to replead
the remaining claims . . . would result in the dismissal of those claims”).
7.

If Millhouse fails to file any response to this Order and its accompanying

Memorandum, the Court will conclude that Millhouse intends to stand on his Amended

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Case 2:19-cv-05139-PBT Document 19 Filed 02/17/21 Page 3 of 3

Complaint and will issue a final order dismissing this case.1 See Weber, 939 F.3d at 239-40
(explaining that a plaintiff’s intent to stand on his complaint may be inferred from inaction after
issuance of an order directing him to take action to cure a defective complaint).

BY THE COURT:
/s/Petrese B. Tucker
PETRESE B. TUCKER, J.

1

The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d
Cir. 1984), is inapplicable to dismissal orders based on a plaintiff’s intention to stand on his
complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as
distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a
court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 F.
App’x 107, 108 n.1 (3d Cir. 2020) (per curiam). Indeed, an analysis under Poulis is not required
when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the
case when a plaintiff opts not to amend his complaint, leaving the case without an operative
pleading. See Dickens v. Danberg, 700 F. App’x 116, 118 (3d Cir. 2017) (per curiam) (“Where a
plaintiff’s conduct clearly indicates that he willfully intends to abandon the case, or where the
plaintiff's behavior is so contumacious as to make adjudication of the case impossible, a
balancing of the Poulis factors is not necessary.”).
3