Arroyo v. Davi, LLC ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL ARROYO, No. 2:21-cv-00273-MCE-DB 12 Plaintiff, 13 v. ORDER 14 DAVI, LLC, a California limited liability company, 15 Defendant. 16 17 18 On January 27, 2022, the Court granted Defendant Davi, LLC’s Motion to Dismiss 19 Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6)1 and Plaintiff 20 Rafael Arroyo (“Plaintiff”) was given twenty (20) days to file an amended complaint. See 21 ECF No. 16 at 9 (“If no amended complaint is timely filed, the causes of action dismissed 22 by virtue of this Memorandum and Order will be deemed dismissed with prejudice upon 23 no further notice to the parties.”). Plaintiff timely informed the Court on February 16, 24 2022, “that he does not intend to file an amended Complaint and will instead stand on 25 his pleadings.” ECF No. 18 at 1. “When the plaintiff timely responds with a formal notice 26 of his intent not to amend, the threatened dismissal merely ripens into a final, appealable 27 judgment.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064–65 (9th Cir. 2004) (stating 28 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure. 1 || that upon the filing of a notice of intent not to amend, a district court should “take[] the 2 || election not to amend at face value, enter[] a final judgment dismissing all claims with 3 | prejudice, and allow[] the case to come. . . on appeal in that posture.”). Accordingly, this 4 | entire action is hereby DISMISSED with prejudice pursuant to Rule 12(b)(6).2, The Clerk 5 || of Court is directed to close the case. 6 IT |S SO ORDERED. 7 8 | Dated: February 25, 2022 Co 9 { lots rf LEK "0 MENTOR UNITED STATES: DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ? Because Plaintiff timely filed a notice of intent not to amend, dismissal is not warranted under 27 Rule 41(b). See Edwards, 356 F.3d at 1064 (“The failure of the plaintiff eventually to respond to the court's ultimatum—either by amending the complaint or by indicating to the court that it will not do so—is 28 properly met with the sanction of a Rule 41(b) dismissal.”).