Currier v. JP Morgan Chase Bank, NA

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT CURRIER Case No.: 20cv227-LAB (JLB)

12 Plaintiff, ORDER DENYING MOTIONS TO 13 v. PROCEED IN FORMA PAUPERIS; AND 14 JP MORGAN CHASE BANK, NA,

et al. 15 ORDER REQUIRING PLAINTIFF Defendants. TO FILE AMENDED 16 COMPLAINT 17

18 19 Defendant JP Morgan Chase Bank removed this action from state court on 20 February 6, 2020, citing federal question jurisdiction. One of Plaintiff Richard 21 Currier’s claims arises under the Americans with Disabilities Act (ADA). 22 On February 10, the Court ordered Currier, by March 10, 2020, to file an 23 amended complaint that complies with federal pleading standards. See Fed. R. 24 Civ. P. 81(c). The Court pointed out that because Currier did not file his complaint 25 in federal court originally, it wasn’t surprising that his complaint did not attempt to 26 comply with federal pleading standards. Nevertheless, the complaint does not 27 comply with Fed. R. Civ. P. 8, and did not allege several facts necessary to support 28 an ADA claim. 1 While the Court warned that failure to obey its order could result in dismissal 2 of Currier’s claims in whole or in part, the order Currier appeals from did not dismiss 3 the action, the complaint, or any claims or parties. Federal Rule of Civil Procedure 4 81(a) authorizes a court to require a party to re-plead following removal. The 5 Court’s order was intended to eliminate the inevitable delay, expense, and burden 6 on the parties and the Court that would result if Defendants were required to file a 7 motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). See Fed. R. Civ. 8 P. 1. The Court was also carrying out its obligation to confirm its own jurisdiction, 9 because the ADA claim was the only basis for jurisdiction and removal. See Mt. 10 Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977). 11 On February 24, Currier filed a motion for leave to proceed in forma pauperis 12 in this Court. (Docket no. 4.) Then two days later, he filed a notice of appeal, and 13 a motion for leave to proceed in forma pauperis on appeal. 14 Because JP Morgan Chase, as the party removing the case, has already 15 paid the filing fee, Currier’s motion to proceed in forma pauperis in this Court 16 (Docket no. 4) is DENIED AS MOOT. 17 Currier’s motion for leave to proceed in forma pauperis on appeal does not 18 comply with Fed. R. App. P. 24(a)(1)(B) or (C). Specifically, his motion does not 19 claim an entitlement to redress, and does not state the issue he intends to present 20 on appeal. 21 Currier filed a separate 32-page notice of appeal. But even construing that 22 as part of the motion does not help Currier. The notice does not identify any non- 23 frivolous issue for appeal. It is confusedly says the Court is requiring him to present 24 evidence, which isn’t correct. It says the Court’s conclusion that his complaint 25 needed to be amended was wrong, but this isn’t an appealable issue, particularly 26 because the Court did not dismiss any claim or party. An order requiring a plaintiff 27 to replead is not final, and is non-appealable. WMX Technologies, Inc. v. Miller, 28 104 F.3d 1133, 1136–37 (9th Cir. 1997) (“[W]hen a district court expressly grants 1 leave to amend, it is plain that the order is not final. . . . A final judgment must be 2 obtained before the case becomes appealable.”). Having reviewed the notice of 3 appeal, the Court cannot discern any non-frivolous appealable issue. 4 The Court certifies that the appeal is not taken in good faith. See Fed. R. 5 App. P. 24(a); Cruz v. Hauck, 404 U.S. 59, 62 (1971). The motion (Docket no. 6) 6 is DENIED without prejudice to its being granted by the Ninth Circuit. 7 Ordinarily, a notice of appeal deprives the District Court of jurisdiction over 8 the matters appealed. But a notice of appeal from a non-final, non-appealable 9 order does not deprive the Court of jurisdiction, and the Court may disregard it and 10 proceed to adjudicate the case. Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 11 389 (9th Cir. 1966). The Court concludes that Currier’s notice of appeal from its 12 non-final, non-appealable order does not deprive it of jurisdiction. The parties 13 should treat this case as active and ongoing. Currier is directed to continue 14 litigating this case, unless relieved of that obligation by this Court or the Ninth 15 Circuit. The Court sua sponte extends the deadline for him to file an amended 16 complaint, from March 10 to March 24, 2020. If he needs more time, he should 17 follow the instructions set forth in the Court’s February 10 order. 18 Currier’s amended complaint should comply with Fed. R. Civ. P. 8. While he 19 is permitted to refer to the attached exhibits in his complaint, see Fed. R. Civ. P. 20 10(c), all factual allegations necessary to support Currier’s claims should be set 21 forth in the body of the complaint. See Ross v. Kelso, 2016 WL 123052, at *3 (E.D. 22 Cal., Jan. 11, 2016). Currier’s amended state court complaint attached lengthy 23 exhibits. Any reference to exhibits he wishes to attach to the amended complaint 24 should include a precise reference, such as an exhibit number or page number. 25 Any exhibits should comply with Civil Local Rule 5.1(e). The amended complaint 26 should be complete in itself, without reference to earlier versions of the complaint. 27 Currier’s notice of appeal suggests he believes it is the Court’s responsibility 28 to look through the exhibits or other pleadings he filed in state court and piece 1 ||together facts for him to support his claims. But alleging facts in the body of the 2 ||complaint to support his claims is his role, not the Court’s. See Adler v. Wal-Mart 3 || Stores, Inc., 144 F.3d 664, 672 (10 Cir. 1998) (“[Federal courts] have a limited 4 ||and neutral role in the adversarial process, and are wary of becoming advocates 5 || who comb the record .. . and make a party's case for it.”) 6 Currier is again reminded that he is obligated both to obey the Court’s 7 ||orders and to continue prosecuting his claims. If he does not, his complaint 8 ||may be dismissed in whole or in part for failure to prosecute, and for failure 9 || to obey the Court’s orders. See Fed. R. Civ. P. 41(b), and Civil Local Rules 83.1, 10 ||83.11(a). See also Hells Canyon Preservation Council v. U.S. Forest Serv., 403 11 ||F.3d 683, 689 (9th Cir. 2005) (explaining that a court may dismiss an action 12 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff's failure 13 prosecute or comply with the court's orders). 14 15 IT IS SO ORDERED. 16 ||Dated: March 2, 2020 17 / it 4 YO 18 Honorable Larry Alan Burns 49 Chief United States District Judge 20 21 22 23 24 25 26 27 28