HealthNOW Medical Center, Inc v. State Farm General Insurance Co.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

HEALTHNOW MEDICAL CENTER, INC, Case No. 20-cv-04340-HSG

Plaintiff, ORDER TO SHOW CAUSE v.

STATE FARM GENERAL INSURANCE

CO.,

Defendant.

On December 10, 2020, the Court granted Defendant State Farm General Insurance Co.’s motion to dismiss Plaintiff HealthNOW Medical Center, Inc.’s second amended complaint. Dkt. No. 40. The Court granted Plaintiff leave to file an amended complaint within 21 days. Id. at 4. Rather than file an amended complaint, however, Plaintiff appealed the Court’s order to the Ninth Circuit. See Dkt. Nos. 41, 42. A dismissal with leave to amend is not an appealable order. See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (dismissing appeal for lack of jurisdiction where district court granted leave to amend and plaintiff did not amend, did not inform district court that it would not amend, and did not obtain final order of dismissal). However, a “plaintiff has the right to stand on the pleading.” See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). When a plaintiff declines to amend its complaint in favor of appealing the dismissal, the proper procedure is for the district court to dismiss the action with prejudice under Federal Rule of Civil Procedure 12(b)(6). See id. at 1063–65.

If Plaintiff prefers to decline the opportunity to amend its complaint in order to appeal immediately, it should request a dismissal with prejudice, which the Court will enter. Plaintiff is therefore ordered to submit a one-page statement by January 8, 2021, confirming that it declines to Otherwise, Plaintiff should file any amended complaint by that date, which is well after the December 31, 2020, deadline set in the dismissal order.

3 IT IS SO ORDERED.

4 || Dated: 12/29/2020 °

HAYWOOD S. GILLIAM, JR. / 6 United States District Judge

©

= 17

Z 18