Opinion

Bolgaev v. City and County of San Francisco

Court
District Court, N.D. California
Filed
Jun 2, 2020
Cited by
0 cases
Authority
More cited than 18.6%

holding that, when a complaint is dismissed with leave to amend for failure to state a claim and the plaintiff provides notice 251] of his intent not to amend, the dismissal under Rule 12(b)(6) “ripens into a final, appealable 26|| judgment”

How later courts described this case

  • holding that, when a complaint is dismissed with leave to amend for failure to state a claim and the plaintiff provides notice 251] of his intent not to amend, the dismissal under Rule 12(b)(6) “ripens into a final, appealable 26|| judgment”

Written by the judges who cited it.

The opinion

1

2

3

UNITED STATES DISTRICT COURT

; FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

ODIL BOLGAEY, et al., Case No: 20-cv-01293-SBA

Plaintiffs, ORDER DISMISSING ACTION

° VS.

10

CITY AND COUNTY OF SAN

11}| FRANCISCO, et al.,

12 Defendants.

13

14 On September 20, 2019, Plaintiffs Odil Bolgaev (“Bolgaev’’) and minors S.A., D.A.,

and J.A. (collectively, “Plaintiffs”) initiated the instant action in state court, bringing claims

under 42 U.S.C. § 1983 and California law against Defendants the City and County of San

Francisco (the “City”), Chief of Police William Scott (“Scott”), and an unknown individual

18]| identified as John Doe (“Doe’’) (collectively “Defendants”). On February 20, 2020, the

19|| City removed the action to this Court, asserting federal question jurisdiction under 28

20}| U.S.C. § 1331 with respect to Plaintiffs’ section 1983 claim and supplemental jurisdiction

under 28 U.S.C. § 1367 with respect to Plaintiffs’ state law claims. Dkt. 1.

22 Thereafter, the City filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). Dkt. 6. Plaintiffs did not oppose the motion. On April 8, 2020,

24|| Magistrate Judge Joseph C. Spero issued a Report and Recommendation Regarding Motion

to Dismiss (“R&R), wherein he recommended that the Court grant the City’s motion to

26|| dismiss with leave to amend. Dkt. 20. Magistrate Judge Spero further recommended that

27|| the Court dismiss the claims against Scott and Doe without prejudice for lack of timely

service. Id. Plaintiffs did not file an objection to the R&R.

1 On May 4, 2020, the Court issued an Order Adopting Report and Recommendation

2|| In Part and Dismissing Complaint With Leave to Amend (“Order”). Dkt. 28. The Court

adopted the recommendation to grant the City’s motion and dismiss Plaintiffs’ claims with

4|| leave to amend. Id. The Court ordered Plaintiff to file an amended complaint within 14

5|| days of the date the Order was filed. Id. The Court declined to adopt the recommendation

to immediately dismiss the claims against Scott and Doe for lack of timely service, finding

71! that Plaintiffs had through May 20, 2020 to effectuate service. Id. Nevertheless, the Court

warned Plaintiffs that it would dismiss Defendants Scott and Doe from the action without

prejudice and without further notice if they failed to complete service by May 20. Id.

10 As set forth in the Court’s Order, the deadline to file an amended complaint was

11|| May 18, 2020 and the deadline to complete service on Scott and Doe was May 20, 2020.

Plaintiffs have neither filed an amended complaint nor shown that service has been

13|| completed. Instead, on May 27, 2020, the parties filed a Joint Case Management Statement

14]| and Notice of Plaintiffs’ Intent Not to File an Amended Complaint. Dkt. 31. In it,

Plaintiffs advise that they do not intend to file an amended complaint. Id. at 2. Plaintiffs

16|| request that the Court “enter a dismissal without prejudice as to all defendants pursuant to

the Court’s Order and remand the matter back to Superior Court.” Id. The City requests

18]| that, as to it, the Court dismiss the action with prejudice. Id.

19 Dismissal of the action against Scott and Doe will be without prejudice pursuant to

20|| Federal Rule of Civil Procedure 4(m). Based on Plaintiffs’ failure to state a claim against

211] the City and their notice of intent not to file an amended complaint, however, dismissal of

221) the action against the City will be with prejudice pursuant to Rule 12(b)(6). See Edwards v.

Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (holding that, when a complaint is

dismissed with leave to amend for failure to state a claim and the plaintiff provides notice

251] of his intent not to amend, the dismissal under Rule 12(b)(6) “ripens into a final, appealable

26|| judgment”); see also Fed. R. Civ. P. 41(b) (“any dismissal not under this rule—except one

for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates

281] as an adjudication on the merits”).

_2-

1 Although Plaintiffs request that the action be dismissed without prejudice as to all

defendants, they provide no justification for that request. The Court also finds no basis for

Plaintiffs’ request that, following dismissal as to all defendants, the action be remanded to

state court. Once the action is dismissed—whether the dismissal is with or without

prejudice—there is no action to remand to the state court.

6 Accordingly, IT IS HEREBY ORDERED THAT:

7 1. The action is DISMISSED without prejudice as to Defendants Scott and Doe

pursuant to Rule 4(m).

9 2. The action is DISMISSED with prejudice as to the City pursuant to Rule

12(b)(6).

I 3. The Clerk shall close the file and terminate any pending matters.

12 IT IS SO ORDERED.

13}| Dated: June 2, 2020 , B 2. a

M4 AUNDRA BROWN ARMSTRO

15 Senior United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28

_3-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.