MAYS v. ALLY FINANCIAL

Filing 5

ORDER THAT PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS IS GRANTED. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED WITHOUT PREJUDICE. MAY MAY FILE AN AMENDED COMPLAINT WITHIN 30 DAYS OF THE DATE OF THIS ORDER. THE CLERK OF COURT IS DIRECTED TO SEND MAYS BLANK COPY OF THIS COURT'S CURRENT STANDARD FORM TO BE USED BY A SELF REPRESENTED LITIGANT; ETC.. SIGNED BY HONORABLE JOHN R. PADOVA ON 9/8/21. 9/8/21 ENTERED AND NOT MAILED TO PRO SE ALONG WITH FORMS.(JL )

Case 2:21-cv-01257-JP Document 5 Filed 09/08/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TIA MAYS,
Plaintiff,
v.
ALLY FINANCIAL,
Defendant.

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CIVIL ACTION NO. 21-CV-1257

ORDER
AND NOW, this 8th day of September, 2021, upon consideration of Plaintiff Tia Mays’s
Motion to Proceed In Forma Pauperis (ECF No. 1), and Complaint (ECF No. 2) it is
ORDERED that:
1.

Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.

2.

The Complaint is DEEMED filed.

3.

The Complaint is DISMISSED WITHOUT PREJUDICE for the reasons in the

Court’s Memorandum.
4.

Mays may file an amended complaint within thirty (30) days of the date of this

Order. Any amended complaint must identify all defendants in the caption of the amended
complaint in addition to identifying them in the body of the amended complaint and shall state
the basis for Mays’s claims against each defendant. The amended complaint shall be a complete
document that does not rely on the initial Complaint or other papers filed in this case to state a
claim. When drafting her amended complaint, Mays should be mindful of the Court’s reasons
for dismissing the claims in her initial Complaint as explained in the Court’s Memorandum.
Upon the filing of an amended complaint, the Clerk shall not make service until so ORDERED
by the Court.

Case 2:21-cv-01257-JP Document 5 Filed 09/08/21 Page 2 of 3

5.

The Clerk of Court is DIRECTED to send Mays a blank copy of this

Court’s current standard form to be used by a self-represented litigant filing a civil action bearing
the above-captioned civil action number. Mays may use this form to file her amended complaint
if she chooses to do so. 1
6.

If Mays does not wish to amend her Complaint and instead intends to stand on

her Complaint as originally pled, she may file a notice with the Court within thirty (30) 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 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 Mays fails to file any response to this Order, the Court will conclude that Mays

intends to stand on her Complaint and will issue a final order dismissing this case. 2 See Weber,
939 F.3d at 239-40 (explaining that a plaintiff’s intent to stand on his complaint may be inferred

This form is available on the Court’s website at
http://www.paed.uscourts.gov/documents2/forms/forms-pro-se.
2
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 her
complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as
1

Case 2:21-cv-01257-JP Document 5 Filed 09/08/21 Page 3 of 3

from inaction after issuance of an order directing him to take action to cure a defective
complaint).
BY THE COURT:
______/s/ John R. Padova___________
JOHN R. PADOVA, J.

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 her 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.”); Baker v. Accounts Receivables Mgmt., Inc.,
292 F.R.D. 171, 175 (D.N.J. 2013) (“[T]he Court need not engage in an analysis of the
six Poulis factors in cases where a party willfully abandons her case or otherwise makes
adjudication of the matter impossible.” (citing cases)).