Colgan v. Sentinel Insurance Company, Ltd.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAMES COLGAN, Case No. 20-cv-04780-HSG

Plaintiff, ORDER TO SHOW CAUSE v.

SENTINEL INSURANCE COMPANY,

LTD.,

Defendant.

On January 26, 2021, the Court granted Defendant Sentinel Insurance Co.’s motion for judgment on the pleadings. Dkt. No. 36. The Court granted Plaintiff leave to file an amended complaint within 21 days. Id. at 8. Rather than file an amended complaint, however, Plaintiff filed a notice of intent not to file an amended complaint and requested that the Court dismiss the action without prejudice. Dkt. No. 37. A “plaintiff has the right to stand on the pleading.” See Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). But 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.

// // // //

//

1 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 must submit a one-page statement by March 8, 2021, confirming whether it declines to amend the || complaint and seeks dismissal with prejudice to enable an immediate appeal. Alternatively, if Plaintiff contends that dismissal without prejudice enables an immediate appeal, its statement must || cite Supreme Court or Ninth Circuit caselaw authorizing that course of action notwithstanding the rule set out in Edwards.

8 IT IS SO ORDERED.

9 || Dated: 3/2/2021

HAYWOOD S. GILLIAM, JR.

United States District Judge

Z 18