PEARSALL v. BANK OF AMERICA ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SHYNELL PEARSALL, : Plaintiff, : : v. : CIVIL ACTION NO. 21-3857 : BANK OF AMERICA, : Defendant. : ORDER AND NOW, this 22nd day of December, 2021, upon consideration of Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 7) and Complaint (ECF No. 2) it is ORDERED that: 1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915. 2. The Complaint is DEEMED filed. 3. The Complaint is DISMISSED WITHOUT PREJUDICE for the reasons stated in the Court’s Memorandum Opinion. 4. Pearsall may file an amended complaint within thirty (30) days of the date of this Order. Any amended complaint must identify all defendants in the caption of the amended complaint in addition to identifying them in the body of the amended complaint and shall state the basis for Pearsall’s claims against each defendant. The amended complaint shall be a complete document that does not rely on the initial Complaint or other papers filed in this case to state a claim. When drafting her amended complaint, Pearsall should be mindful of the Court’s reasons for dismissing the claims in her initial Complaint as explained in the Court’s Memorandum Opinion. Upon the filing of an amended complaint, the Clerk shall not make service until so ORDERED by the Court. 5. The Clerk of Court is DIRECTED to send Pearsall a blank copy of this Court’s current standard form to be used by a self-represented litigant filing a civil action bearing the above-captioned civil action number. Pearsall may use this form to file her amended complaint if she chooses to do so.1 6. If Pearsall does not wish to amend her Complaint and instead intends to stand on her Complaint as originally pled, she may file a notice with the Court within thirty (30) days of the date of this Order stating that intent, at which time the Court will issue a final order dismissing the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall include the civil action number for this case. See Weber v. McGrogan, 939 F.3d 232, 241 (3d Cir. 2019) (“If the plaintiff does not desire to amend, he [or she] may file an appropriate notice with the district court asserting his [or her] intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); In re Westinghouse Sec. Litig., 90 F.3d 696, 703-04 (3d Cir. 1996) (holding that “the district court did not abuse its discretion when it dismissed with prejudice the otherwise viable claims . . . following plaintiffs’ decision not to replead those claims” after the district court “expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the dismissal of those claims”). 7. If Pearsall fails to file any response to this Order within thirty (30) days, the Court will conclude that Pearsall intends to stand on her Complaint and will issue a final order dismissing this case.2 See Weber, 939 F.3d at 239-40 (explaining that a plaintiff’s intent to stand 1 This form is available on the Court’s website at http://www.paed.uscourts.gov/documents2/forms/forms-pro-se 2 The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), is inapplicable to dismissal orders based on a plaintiff’s intention to stand on her complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order, which requires assessment of the Poulis factors). on the complaint may be inferred from inaction after issuance of an order directing plaintiff to take action to cure a defective complaint). BY THE COURT: /s/Wendy Beetlestone, J. WENDY BEETLESTONE, J.