Petition for Writ of Certiorari — Laurack D. Bray, Petitioner v. Matthew Scott Kenefick, Individually and as Partner in Jeffers Mangels, et al.

Supreme Court briefMay 22, 2025

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Case: 24-7622, 02/26/2025, DktEntry: 7.1, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

FEB 26 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 24-7622

LAURACK D. BRAY,

D.C. No. 2:24-cv-08640-FMO-AJR

Central District of California,

Los Angeles

Plaintiff - Appellant,

ORDER

MATTHEW SCOTT KENEFICK

Esquire, Attorney, individually and as

partner in Jeffers Mangels; et al.,

Defendants - Appellees.

Before: CANBY, M. SMITH, and FORREST, Circuit Judges.

After considering the response to the court’s January 8, 2025 order, we deny

the motion to proceed in forma pauperis (Docket Entry No. 3) and dismiss this

appeal as frivolous. See 28 U.S.C. § 1915(a), (e)(2).

All other pending motions are denied as moot.

No further filings will be entertained in this closed case.

DISMISSED.

APPX ft

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

LaurackD. Bray,

2:24-cv-08640-FMO-AJR

PLAINTIFF(S)

ORDER ON REQUEST TO PROCEED

IN FORMA PAUPERIS

(NON-PRISONER CASE)

Matthew S. Kenefick, et at,

DEFENDANTS)

The Court has reviewed the Request to Proceed In Forma Pauperis (foe “Request”) and the documents submitted with it On foe

question of indigency, foe Court finds that foe party who filed foe Request:

Q] is not able to pay foe filing fees.

a^e to PaY *^e 6^8 fees.

|x| has not submitted enough information for the Court to tell if the filer is able to pay the filing fees. This is what is missing:

Plaintiff failed to explain with particularity why his monthly expenses exceeds his monthly income by $1,070. See Escobedo

v. Applebees, 787 F.3d 1226,1234 (9th Cir. 2015) (“[A] plaintiff seeking IFP status must allege poverty with some

particularity, definiteness and certainty."); see also Salat v. Wilson, 2017 WL 4269958, at *3 (D. Nev. Sept 26,2017)

(*Despite both IFP applications representing that Plaintiff regularly spends each month more than he receives in disability

payments, he provides no explanation for the discrepancy.").

IT IS THEREFORE ORDERED that:

The Request is GRANTED.

Q Ruling on the Request is POSTPONED for 30 days so that the filer may provide additional information.

[2] The Request is DENIED because the filer has foe ability to pay.

[xj As explained in foe attached statement, foe Request is DENIED because:

Q The District Court lacks Q] subject matter jurisdiction QI removal jurisdiction.

QI The action is frivolous or malicious.

|X] The action fails to state a claim upon which relief may be granted.

[~| The action seeks monetary relief against defendants) immune from such relief.

IT IS FURTHER ORDERED Aat:

Q] Within 30 days of foe date of this Order, foe filer must do foe following:

If the filer does not comply with these instructions within 30 days, this case will be DISMISSED without prejudice.

|X| As explained in the attached statement, because it is absolutely dear that the deficiencies in the complaint cannot be cured by

amendment, this case is hereby DISMISSED OWITHOUT PREJUDICE WITH PREJUDICE.

Q] This case is REMANDED to state court as explained in the attached statement

1st Fernando M. Olguin

December 9,2024

United States District Judge

Date

CV-73 (07/22)

ORDER ON REQUEST TO PROCEED IA'/ ORA1A PAURER/S (NON-PRISONER CASE)

/V>PX6

On October 8,2024, Plaintiff filed a Complaint and a Request to Proceed in Forma Pauperis (“IFP request”).

(ECF Nos. 1, 5.) Plaintiff, an attorney, alleged that Defendants interfered with a motion for Plaintiff s pro

hac vice admission in the Los Angeles County Superior Court. (ECF No. 1 at 4.) Defendants allegedly

made false statements to the state court about Plaintiff s bar membership in the District of Columbia. (Id. at

6.) Plaintiff raised two claims: (1) a federal claim of racial discrimination under 42 U.S.C. § 1981 and (2) a

state law claim of defamation. (Id. at 9-11.)

On October 31,2024, the Court ordered Plaintiff to file another IFP request and an Amended Complaint.

(ECF No. 15.) The Court ordered Plaintiff to allege under 42 U.S.C. § 1981, if he could, an impaired

contractual relationship and sufficient authority by Defendants to interfere with Plaintiff’s ability to obtain a

contract. (Id.)

On November 27,2024, Plaintiff filed an Amended Complaint. (ECF No. 19.) Plaintiff continues to allege

racial discrimination under 42 U.S.C. § 1981, but he does not identify an unpaired contractual relationship

under which he had any rights. (Id. at 10-11.) Instead, Plaintiff alleges that the Court misunderstood his

claim and that he is not required to allege the existence of a contract in order to proceed under 42 U.S.C. §

1981. (ECF No. 18 at 3.)

Because Plaintiff seeks to proceed in forma pauperis, the Court has reviewed the Complaint to determine

whether the action is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks

monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). As stated

below, the Amended Complaint is dismissed without further leave to amend.

“Any claim brought under 42 U.S.C. § 1981... must initially identify an impaired ‘contractual relationship,’

§ 1981(b), under which the plaintiff has rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470,476

(2006). Plaintiff’s argument that he is not required to identify a contract is incorrect. “Absent the

requirement that the plaintiff himself must have rights under the contractual relationship, § 1981 would

become a strange remedial provision designed to fight racial animus in all of its noxious forms[.]

Domino’s, 546 U.S. at 476. “[N]othing in the text of § 1981 suggests that it was meant to provide an

omnibus remedy for all racial injustice.... Trying to make it a cure-all not only goes beyond any expression

of congressional intent but would produce satellite § 1981 litigation of immense scope.’ Id. at 479; see also

Banks v. American Airlines Group, Inc., 2022 WL 1537360, at *1 (9th Cir. 2022) (plaintiffs failed to state a

claim for racial discrimination under 42 U.S.C. § 1981 when they failed to identify a contractual relationship

under which they had rights). Thus, Plaintiff has failed to state a federal claim.

Because Plaintiff s federal claim under 42 U.S.C. § 1981 must be dismissed for failure to state a claim, the

state law claim for defamation is dismissed without prejudice. See Les Shockley Racing, Inc. v. Nat’l Hot

Rod Ass’n, 884 F.2d 504, 509 (9th Cir. 1989) ( “When ... the court dismisses the federal claim[s] leaving only

state claims for resolution, the court should decline jurisdiction over the state claims and dismiss them

without prejudice.”).

Finally, further leave to amend is not warranted. “The district court’s discretion to deny leave to amend is

particularly broad where the court has already given the plaintiff an opportunity to amend his complaint.

Fidelity Financial Corp. v. Fed. Home Loan Bank, 792 F.2d 1432,1438 (9th Cir.1986). “Because Plaintiff

essentially re-pled the same facts and legal theories in his amended complaint, an additional opportunity to

amend is not warranted. Loos v. Immersion Corp., 762 F.3d 880, 890 (9th Cir. 2014). Thus, the Amended

Complaint is dismissed without further leave to amend, and this action is dismissed without prejudice.

(attach additional pages if necessary)

ORDER ON REQUEST TO PROCEED IN FORMA PA UPER1S (NON-PRISONER CASE)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

LaurackD. Bray,

2:24-cv~08640-FMO-AJR

PLAINTIFF(S)

Matthew S. Kenefick, et aL,

DEFENDANT(S)

ORDER ON REQUEST TO PROCEED

IN FORMA PA UPERIS

(NON-PRISONER CASE)

The Court has reviewed die Request to Proceed In Forma Pauperis (the “Request”) and the documents submitted with it On the

question of indigency, die Court finds that the party who hied the Request:

(2J is not able to pay the filing fees.

[J is able to pay the filing fees.

[x| has not submitted enough information for the Court to tell if the filer is able to pay the filing fees. This is what is missing:

Plaintiff reports monthly income of $1,100 and monthly expenses of $2,170. He fails to explain the monthly shortfall of

$1,070.

IT IS THEREFORE ORDERED that:

Q] The Request is GRANTED.

g] Ruling on the Request is POSTPONED for 30 days so that foe filer may provide additional information.

The Request is DENIED because foe filer has foe ability to pay.

[2] As explained in the attached statement, the Request is DENIED because:

Q The District Court lacks [J subject matter jurisdiction [J removal jurisdiction.

[J The action is frivolous or malicious.

[2J The action fails to state a claim upon which relief may be granted.

The action seeks monetary relief against defendant(s) immune from such relief.

IT IS FURTHER ORDERED that:

[x| Within 30 days of the date of this Order, foe filer must do the following:

Plaintiff rnnct file a Request to Proceed in Forma Pauperis that explains his monthly shortfall In the alternative, he must

pay the filing fee of $405.

Plaintiff also must file an Amended Complaint. See the attached statement

If the filer does not comply with these instructions within 30 days, this case will be DISMISSED without prejudice.

□ As explained in the attached statement, because it is absolutely clear that the deficiencies in the complaint cannot be cured by

amendment, this case is hereby DISMISSED O WITHOUT PREJUDICE Q WITH PREJUDICE.

□ This case is REMANDED to state court as explained in the attached statement

/s/ Fernando M. Olguin

October 31,2024 .

United States District Judge

Date

CV-73 (07/22)

ORDER ON REQUEST TO PROCEED INFORMA PAUPERIS (NON-PRISONER CASE)

MWC

On October 8,2024, Plaintiff filed a Complaint and a Request to Proceed in Forma Pauperis. (ECF Nos. 1,

5.) Plaintiff, an attorney, alleges that Defendants interfered with his motion for pro hac vice admission in

the Los Angeles County Superior Court, in Civil Case No. 22STCV15022. (ECF No. 1 at 4.) Defendants

allegedly made false statements to the state court about Plaintiff s bar membership in the District of

Columbia. (Id. at 6.) Plaintiff raises two claims: (1) a federal claim of racial discrimination under 42 U.S.C.

§ 1981 and (2) a state law claim of defamation. (Id. at 9-11.)

Because Plaintiff seeks to proceed in forma pauperis, the Court has reviewed the Complaint to determine

whether the action is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks

monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). As

explained below, the Complaint fails to state a federal claim.

Any claim brought under 42 U.S.C. § 1981 “must initially identify an impaired ‘contractual relationship,’ §

1981(b), under which the plaintiff has rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470,476 (2006).

Plaintiff has not identified a contractual relationship under which he had rights and that Defendants

allegedly impaired.

Moreover, for Defendants to be Hable under 42 U.S.C. § 1981, Plaintiff must allege that Defendants “both

possessed sufficient authority to significantly interfere with the individual’s ability to obtain contracts with

third parties, and that the [defendant] actually exercised that authority to the [plaintiff s] detriment.”

Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 351 (4th Cir. 2013) (collecting cases). Plaintiff has not

alleged how Defendants possessed any authority to significantly interfere with his ability to obtain a contract

and actually exercised that authority.

“In dismissing for failure to state a claim, a district court should grant leave to amend even if no request to

amend the pleading was made, unless it determines that the pleading could not possibly be cured by the

allegation of other facts.” Doe v. United States, 58 F.3d 494,497 (9th Cir. 1995). Plaintiff is granted leave to

file an Amended Complaint. The Amended Complaint must be complete in itself and must not refer to the

original Complaint. The Amended Complaint “must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The failure to

file an Amended Complaint, or the filing of an Amended Complaint without the necessary allegations, may

result in the dismissal of this action.

(attach additional pages if necessary)

CV-73 (07/22)

ORDER ON REQUEST TO PROCEED IN FORMA PAUPERIS (NON-PRISONER CASE)

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

LAURACKD. BRAY,

Case No. 2:24-cv-08640-FMO (AJR)

ORDER DISMISSING ACTION

WITHOUT PREJUDICE FOR

FAILURE TO COMPLY WITH A

COURT ORDER

Plaintiff,

MATTHEW S. KENEFICK, et al.,

Defendants.

INTRODUCTION

On October 8,2024, Plaintiff filed a Complaint and a Request to Proceed in

Forma Pauperis (“IFP request”). (ECFNos. 1,5.) In the Complaint, Plaintiff

alleged racial discrimination in violation of 42 U.S.C. § 1981 and a state law claim

of defamation. (ECF No. 1 at 9-11.)

On October 31, 2024, the Court issued an order postponing a ruling on the

IFP request until Plaintiff provided more information. (ECF No. 15.) The Court

ordered Plaintiff either to file another IFP request that explains why his monthly

expenses exceeds his monthly income by $1,070 or to pay the filing fee of $405.

(Id.) The Court also ordered Plaintiff to file an Amended Complaint with more

factual allegations for his claim of racial discrimination. (Id.) The Court warned

Plaintiff that his failure to comply with the Court’s order within 30 days could

result in the dismissal of this action. (Id.)

As of this date, more than 30 days later, Plaintiff has not filed another IFP

request, paid the filing fee, or filed an Amended Complaint. Instead, Plaintiff has

filed a “Motion to the Chief Judge” arguing that this case was improperly assigned

to the undersigned District Judge and that this case should proceed before a

different District Judge who grants the IFP request. (ECFNo. 16.) For the

following reasons, this action is dismissed without prejudice.

DISCUSSION

A district court has the inherent power under Federal Rule of Civil Procedure

Legal Standard.

41(b) to dismiss an action for failure to prosecute or to comply with the court’s

order. Link v. Wabash R. Co., 370 U.S. 626, 631 (1962). Specifically, the failure of

a plaintiff to comply with a district court’s order to file an amended complaint is

properly met with the sanction of dismissal under Rule 41(b). Applied

Underwriters, Inc., v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (collecting

cases). “Under Ninth Circuit precedent, when a plaintiff fails to amend his

complaint after the district judge dismisses the complaint with leave to amend, the

dismissal is typically considered a dismissal for failing to comply with a court order

rather than for failing to prosecute the claim.” Yourish v. California Amplifier, 191

F.3d 983, 986 (9th Cir. 1999).

“[I]n order for a court to dismiss a case as a sanction, the district court must

consider five factors: ‘(1) the public's interest in expeditious resolution of litigation;

(2) the court's need to manage its docket; (3) the risk of prejudice to the defendants;

(4) the public policy favoring disposition of cases on their merits; and (5) the

availability of less drastic alternatives.’” Yourish, 191 F.3d at 986 (quoting

Hernandez v. City ofEl Monte, 138 F.3d 393, 399 (9th Cir. 1998)). A district

court’s sanction of dismissal generally will be affirmed where at least four factors

support dismissal or where at least three factors strongly support it. Hernandez, 138

F.3d at 399. As stated below, four of the five factors support dismissal.

Analysis.

The Public’s Interest in Expeditious Resolution.

The first factor supports dismissal. “[T]he public’s interest in expeditious

resolution of litigation always favors dismissal.” Yourish, 191 F.3d at 990.

The Court’s Need to Manage Its Docket

The second factor also supports dismissal. Plaintiffs failure to respond to

the Court’s Order interferes with the Court’s ability to manage its docket. See

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“The trial judge is in the

best position to determine whether the delay in a particular case interferes with

docket management and the public interest. Arguably, Pagtalunan’s petition has

consumed some of the court’s time that could have been devoted to other cases on

the docket.”) (internal citation omitted); see also Irvin v. Madrid, 749 F. App’x

546, 547 (9th Cir. 2019) (“The second factor also favors dismissal because the

district court is in the best position to determine whether a particular set of

circumstances interferes with docket management.”).

The Risk of Prejudice to Defendants.

The third factor also supports dismissal. The risk of prejudice is “related to the

plaintiffs reason for defaulting in failing to timely amend.” Yourish, 191 F.3d at

991. The record suggests no plausible reason for Plaintiffs failure to comply with

the Court’s Order. This indicates sufficient prejudice to Defendant. See In re Eisen,

31 F.3d 1447, 1452-53 (9th Cir. 1994) (recognizing that the law presumes injury to

the defendants from unreasonable delay).

The Public Policy Favoring Disposition of the Merits.

The fourth factor weighs against dismissal. “We have often said that the

public policy favoring disposition of cases on their merits strongly counsels against

dismissal.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460

F.3d 1217, 1228 (9th Cir. 2006) (citing Hernandez, 138 F.3d at 399). On the other

hand, “this factor lends little support to a party whose responsibility it is to move a

case toward disposition on the merits but whose conduct impedes progress in that

direction.” Products Liability Litigation, 460 F.3d at 1228 (citations and quotation

marks omitted). Thus, this factor alone does not preclude dismissal.

The Availability of Less Drastic Alternatives.

The fifth factor supports dismissal. “Here the fact that the district court

allowed [Plaintiff] an additional thirty days to amend his complaint... constituted

an attempt at a less drastic sanction than outright dismissal.” Ferdik v. Bonzelet,

963 F.2d 1258,1262 (9th Cir. 1992). The Court also warned Plaintiff that the

failure to comply with the Court’s Order to amend his Complaint would result in

dismissal. See Products Liability Litigation, 460 F.3d at 1229 (“Warning that

failure to obey a court order will result in dismissal can itself meet the

‘consideration of alternatives’ requirement.”) (citing, inter alia, Ferdik, 963 F.2d at

1262 (“Moreover, our decisions also suggest that a district court’s warning to a

party that his failure to obey the court’s order will result in dismissal can satisfy the

‘consideration of alternatives’ requirement.”)). Despite the Court’s warning,

Plaintiff failed to file an Amended Complaint.

Four of the five factors support dismissal of the action for failure to comply

Conclusion.

with an Order of the Court. Moreover, the severity of the sanction is lessened

because the dismissal is without prejudice rather than with prejudice, thereby

“giving the plaintiff an opportunity to return and prosecute his claims another day.”

Ash v. Cvetkov, 739 F.2d 493,497 (9th Cir. 1984). In sum, dismissal without

prejudice is warranted.

ORDER

It is ordered that the action is dismissed without prejudice. Fed. R. Civ. P.

41(b).

DATED: December 3, 2024

_____________ /s/_________________

FERNANDO M. OLGUIN

UNITED STATES DISTRICT JUDGE

Case: 24-7622, 01/08/2025, DktEntry: 4.1, Page 1 of 2

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JAN 8 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LAURACK D. BRAY,

No. 24-7622

D.C. No.

2:24-cv-08640-FMO-AJR

Central District of California,

Los Angeles

Plaintiff - Appellant,

ORDER

Mr. MATTHEW SCOTT KENEFICK

Esquire, Attorney, individually and as

partner in Jfeffers Mangels; et al.,

Defendants - Appellees.

It appears that this appeal may be frivolous. If the appeal is frivolous, the

court will deny permission to proceed in forma pauperis and dismiss the appeal.

See 28 U.S.C. § 1915(e)(2).

Within 35 days, appellant must:

(1) file a statement explaining why the appeal is not frivolous, OR

(2) file a motion to voluntarily dismiss the appeal, see Fed. R. App. P. 42(b).

If appellant files a statement explaining why the appeal is not frivolous, or

any other response other than a motion to dismiss, the court will determine whether

the appeal is frivolous. If it is frivolous, the appeal will be dismissed. If it is not

frivolous, the appeal will proceed.

Briefing is stayed.

Case: 24-7622, 01/08/2025, DktEntry: 4.1, Page 2 of 2

If appellant does not respond to this order, the court may dismiss this appeal

without further notice.

The clerk will serve on appellant: (1) a form motion to voluntarily dismiss

the appeal, and (2) a form statement that the appeal should go forward.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

24-7622

Additional material

from this filing is

available in the

Clerk's Office.

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