From Casetext: Smarter Legal Research

Perry v. Cashcall Inc.

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division
Jun 16, 2014
No. C 13-02369 LB (N.D. Cal. Jun. 16, 2014)

Opinion

No. C 13-02369 LB

06-16-2014

EDGAR PERRY, Plaintiff, v. CASHCALL, INC., et al., Defendants.


ORDER DISMISSING WITHOUT PREJUDICE SECOND AMENDED COMPLAINT, ALLOWING PLAINTIFF UNTIL JULY 7, 2014 TO FILE A THIRD AMENDED COMPLAINT, AND DENYING REASSIGNMENT

[Re: ECF Nos. 86, 91, 92, 95]

The court granted Mr. Perry leave to file a Second Amended Complaint by April 7, 2014 to reallege his breach of contract claim against CashCall. Amended 3/17/2014 Order, ECF No. 86. On March 28, 2014, Mr. Perry appealed the court's order to the United States Court of Appeals for the Ninth Circuit. Notice of Appeal, ECF No. 87. But on May 21, 2014, the Ninth Circuit panel dismissed his appeal for lack of jurisdiction because the order he challenged (the court's Amended 3/17/2014 Order granting Defendants' motions to dismiss) is not final or appealable. Order of USCA, ECF No. 91.

Citations are to the Electronic Case File ("ECF") with pin cites to the electronically-generated page numbers at the top of the document.

This is because an order is not appealable unless it disposes of all claims as to all parties or judgment is entered in compliance with Rule 54, see Fed. R. Civ. P 54(b); Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981), and the court's Amended 3/17/2014 Order dismissed Mr. Perry's breach of contract claim against CashCall without prejudice and allowed him to file a Second Amended Complaint to re-allege this claim, see WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (dismissal of complaint with leave to amend is not appealable).
--------

In light of Mr. Perry's appeal and the Ninth Circuit's order, and to clarify the required next steps, the court provided Mr. Perry until June 9, 2014 to file a Second Amended Complaint to re-allege his breach of contract claim against CashCall. See Order, ECF No. 92. Mr. Perry failed to meet this deadline and filed his Second Amended Complaint on June 11, 2014. See generally, Docket; Second Amended Complaint, ECF No. 95. In addition, Mr. Perry failed to limit the Second Amended Complaint to the breach of contract claim against CashCall. Id. Rather, Mr. Perry filed a Second Amended Complaint against all four defendants, asserting claims that were previously dismissed by the court with prejudice. Id.

Mr. Perry also requests that this case be reassigned to a District Court Judge. However, Mr. Perry has already consented to the undersigned's jurisdiction. See Motion, ECF No. 94; Consent (Plaintiff), ECF No. 9; Consent (CashCall), ECF No. 13. As such, the Court DENIES Mr. Perry's request for reassignment.

Because Mr. Perry is a pro se litigant, the court will provide him with one more opportunity to file an amended complaint that complies with the court's March 17, 2014 order. Mr. Perry has until July 7, 2014 to file a Third Amended Complaint. In that Third Amended Complaint, Mr. Perry may only re-allege his breach of contract claim against CashCall. He may not reallege the claims he brought against the State of California, First Bank, and PFSA, or his TILA claim against CashCall, because the court already dismissed those claims with prejudice. Should Mr. Perry fail to file a Third Amended Complaint timely and in compliance with the above-mentioned directions, the court may dismiss his action for failing to prosecute it.

IT IS SO ORDERED. Dated: June 16, 2014

/s/________

LAUREL BEELER

United States Magistrate Judge


Summaries of

Perry v. Cashcall Inc.

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division
Jun 16, 2014
No. C 13-02369 LB (N.D. Cal. Jun. 16, 2014)
Case details for

Perry v. Cashcall Inc.

Case Details

Full title:EDGAR PERRY, Plaintiff, v. CASHCALL, INC., et al., Defendants.

Court:UNITED STATES DISTRICT COURT Northern District of California San Francisco Division

Date published: Jun 16, 2014

Citations

No. C 13-02369 LB (N.D. Cal. Jun. 16, 2014)