Franklin v. Ash

Full title: McARTHUR FRANKLIN, et al. Plaintiffs, v. PAUL ASH, et al., Defendants

Court: United States District Court, N.D. California

Date published: Oct 15, 2004

No. C 03-5726 JL (N.D. Cal. Oct. 15, 2004)

Opinion

No. C 03-5726 JL.

October 15, 2004

DISMISSAL WITH PREJUDICE

JAMES LARSON, Magistrate Judge

On September 15 this Court dismissed Plaintiffs' Third Amended Complaint with leave to amend within thirty days or their case would be dismissed with prejudice:

"This Court hereby dismisses the complaint with leave to amend within thirty days of receipt of this order, to state:

1) a cause of action for Plaintiff McARTHUR Franklin without reference to his capacity as Executive Director of YSOS;

2) Identification of counsel for YSOS; and

3) What injury the Food Bank caused to YSOS.

Failure to satisfy provision (1) shall result in dismissal with prejudice of the complaint of Plaintiff McArthur Franklin; failure to satisfy (2) or (3) shall result in dismissal with prejudice of the complaint of YSOS." (Order at pages 2 — 3)

The basis of the Court's order was that McArthur Franklin's complaint in fact alleges no cause of action on his own behalf but solely in his capacity as Executive Director of YSOS, on behalf of the organization, failing to meet the pleading standard of Rule 8, Federal Rules of Civil Procedure, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."

The Court also found that Plaintiff YSOS is a non-profit organization subject to Internal Revenue Service Code 501(c)(3) and as such must be represented by counsel. See Church of the New Testament v. United States, 783 F.2d 771, 773 (9^th Cir. 1986) (unincorporated associations); In re Highley, 459 F.2d 554, 555 (9^th Cir. 1972) (corporations).

In addition, the Court found that YSOS fails to allege that it was injured by the Food Bank. Consequently its complaint fails to meet the pleading standard of Rule 8, Federal Rules of Civil Procedure.

Plaintiffs did not file an amended complaint within the thirty days allotted by the Court.

Instead, on October 8, Plaintiffs McArthur Franklin and YSOS, with the assistance of a third-year law student, filed an appeal of this Court's order dismissing their Third Amended Complaint with leave to amend. This Court is unaware of any basis for an appeal of such an order. "Ordinarily an order dismissing a complaint but not the underlying action is not a final order. Here it is far from clear that the district judge found that California's action could not be saved by any amendment of the complaint." California v. Harvier, 700 F.2d 1217, 1218 (9^th Cir. 1983) (dismissing appeal), certiorari denied 464 U.S. 820.

After giving Plaintiffs multiple opportunities to cure the fatal defects in their complaint this Court now dismisses their complaint and this entire action with prejudice, for failure to comply with the rules and orders of this Court and the Federal Rules of Civil Procedure. Judgment shall be entered for Defendants. The clerk shall close the file.

IT IS SO ORDERED.