BERKERY v. CREDIT COLLECTION SERVICES

Filing 5

ORDERED THAT: LEAVE TO PROCEED IN FORMA PAUPERIS IS GRANTED PURSUANT TO 28 U.S.C. § 1915. THE COMPLAINT IS DEEMED FILED. THE COMPLAINT IS DISMISSED WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM. BERKERY MAY FILE AN AMENDED COMPLAINT WITH IN THIRTY (30) DAYS OF THE DATE OF THIS ORDER. THE CLERK OF COURT IS DIRECTED TO SEND BERKERY A BLANK COPY OF THE COURTS NON-PRISONER FORM COMPLAINT BEARING THE ABOVE CIVIL ACTION NUMBER. BERKERY MAY USE THIS FORM TO FILE HIS AMENDED COMPLAINT IF HE CHOOSES TO DO SO.. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 9/7/2021. 9/7/2021 ENTERED AND COPIES NOT MAILED TO PRO SE.(sg, )

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Case 2:21-cv-03809-MSG Document 5 Filed 09/07/21 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOHN C. BERKERY, Sr., Plaintiff, v. CREDIT COLLECTION SERVICES, Defendant. : : : : : : : CIVIL ACTION NO. 21-CV-3809 ORDER AND NOW, this 7th day of September, 2021, upon consideration of Plaintiff John C. Berkery’s Motion to Proceed In Forma Pauperis (ECF No. 1), and his pro se 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 failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for the reasons stated in the Court’s Memorandum. 4. Berkery 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 Berkery’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 his amended complaint, Berkery should be mindful of the Court’s reasons for dismissing the claims in his 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-03809-MSG Document 5 Filed 09/07/21 Page 2 of 3 5. The Clerk of Court is DIRECTED to send Berkery a blank copy of the Court’s non-prisoner form complaint bearing the above civil action number. Berkery may use this form to file his amended complaint if he chooses to do so. 1 6. If Berkery does not wish to amend his Complaint and instead intends to stand on his Complaint as originally pled, he 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 Berkery fails to file any response to this Order, the Court will conclude that Berkery intends to stand on his 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 1 2 This form is available on the Court’s website at http://www.paed.uscourts.gov. 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. Case 2:21-cv-03809-MSG Document 5 Filed 09/07/21 Page 3 of 3 inferred from inaction after issuance of an order directing him to take action to cure a defective complaint). BY THE COURT: /s/ Mitchell S. Goldberg MITCHELL S. GOLDBERG, J. 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.”); 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)).

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