Oliphant v. Moynihan et al

Northern District of California, cand-4:2015-cv-01187

ORDER. Signed by Judge Haywood S. Gilliam, Jr. on 7/22/2015.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 LEONARD VAUGHN OLIPHANT, 7 Case No. 15-cv-01187-HSG Plaintiff, 8 v. ORDER 9 BRIAN T. MOYNIHAN, et al., Re: Dkt. Nos. 57, 60 10 Defendants. 11 12 On June 4, 2015, the Court granted Defendants' motions to dismiss Plaintiff's Amended Northern District of California United States District Court 13 Complaint on the ground that the Amended Complaint failed to allege facts supporting personal 14 jurisdiction. Dkt. No. 55. In short, Plaintiff has sued four individuals—all of whom either work 15 for Bank of America or worked at a law firm allegedly engaged by Bank of America—without 16 pleading how personal jurisdiction is appropriate over the Defendants as individuals (as opposed 17 to Bank of America as a company). Id. The Court provided Plaintiff over three weeks to file a 18 Second Amended Complaint to address this deficiency. Id. at 5. However, given the extensions 19 of time already provided to Plaintiff, see Dkt. Nos. 23 and 35, and the need to efficiently manage 20 its docket, the Court informed Plaintiff that the Court would not consider a motion to extend this 21 deadline and that failure to file a timely Second Amended Complaint would result in dismissal 22 with prejudice. See Dkt. No. 55 at 5. 23 Despite these clear instructions, Plaintiff did not file a Second Amended Complaint by the 24 June 26, 2015 deadline, or at any time thereafter. Instead, Plaintiff filed what he termed a 25 "Request Declaratory Judgment Plaintiff's Objection to Court's Order Granting Motions to 26 Dismiss; Notice of Harm and Damage and Distress of Bond." Dkt. No. 57 at 1. Plaintiff's 27 submission improperly seeks to reargue (and raise new arguments) concerning the question of 28 personal jurisdiction resolved by the Court's June 4th order. See id. Plaintiff requests that the 1 Court vacate its order, or, in the alternative, correct the order "so as to pave the way for an orderly 2 appeal." Id. at 9. In that submission, Plaintiff affirmatively represented that he "will not be 3 amending his Amended Claim. . . ." Id. 4 Accordingly, there is currently no operative complaint in this action and the Court must 5 decide whether to permit Plaintiff another opportunity to amend. Although a court will generally 6 grant leave to amend a dismissed complaint, leave to amend may be denied "due to 'undue delay, 7 bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 8 amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 9 the amendment, [and] futility of amendment.'" Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 10 522, 532 (9th Cir. 2008) (citation omitted). In this case, Plaintiff was afforded the opportunity to 11 amend his pleading. Dkt. No. 55; see also Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 12 F.3d 1049, 1072 (9th Cir. 2008) ("[T]he district court's discretion to deny leave to amend is Northern District of California United States District Court 13 particularly broad where plaintiff has previously amended the complaint.") (citation omitted). He 14 refused to do so. Dkt. No. 57 at 9; see also Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 15 981, 1007 (9th Cir. 2009), as amended (Feb. 10, 2009) ("The fact that Zucco failed to correct these 16 deficiencies in its Second Amended Complaint is 'a strong indication that the plaintiffs have no 17 additional facts to plead.'") (citation omitted). Plaintiff's outright refusal to amend in 18 contravention of the Court's order strongly suggests that he has "made [his] best case and [has] 19 been found wanting." Id. 20 Pursuant to the Court's June 4, 2015 order, Plaintiff's Amended Complaint is 21 DISMISSED WITH PREDUJICE.1 22 IT IS SO ORDERED. 23 Dated: July 22, 2015 24 25 ________________________ HAYWOOD S. GILLIAM, JR. 26 United States District Judge 27 1 28 This Order also terminates Defendants' Motion to Dismiss for Lack of Prosecution, Dkt. No. 60, which is now moot in light of the Court's ruling. 2