Kirkpatrick v. Hubman

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Ty Kirkpatrick, No. CV-21-01048-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Timothy Hubman, et al., 13 Defendants. [14] 15 There are several matters before the Court. The first to be addressed arises from the 16 Court’s prior Order (Doc. 33), which put pro se Plaintiff Ty Kirkpatrick on notice that the 17 Court was contemplating dismissing this action as a duplicative proceeding. The Court 18 issued this Order after learning of a proceeding between the same parties in the Central 19 District of California, Kirkpatrick v. Hubman, et al., 2:20-cv-10161-FWS-SK (the 20 “California Proceeding”).1 Mr. Kirkpatrick has filed a Response to the Court’s Order (Doc. 21 33). 22 Also Pending before the Court are Defendant Timothy Hubman’s Motion to Dismiss 23 (Doc. 23) and Mr. Kirkpatrick’s two motions for default (Docs. 25; 29). The Motion to 24 Dismiss is fully briefed, but Defendants have not responded to the Motions for Default. 25 I. Factual Background 26 On June 10, 2020, Mr. Kirkpatrick initiated the California Proceeding and named 27 1 The Court will take judicial notice of the proceeding in the Central District of California. U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th 28 Cir. 1992) (holding courts may take notice of other court proceedings if they “have a direct relation to the matters at issue”) (citation omitted). 1 Mr. Hubman and Mr. Hubman’s company, the Coexist Foundation, Inc. (“Coexist”), as 2 Defendants. A year later, on June 16, 2021, Mr. Kirkpatrick initiated this matter (the 3 “Arizona Proceeding”), which named the same Defendants. No party, in either action, is 4 represented by counsel. 5 Mr. Hubman is a self-described ex “con man,” although the Seventh Circuit Court 6 of Appeals found he likely still is one. Coexist Found., Inc. v. Fehrenbacher, 865 F.3d 7 901, 904 (7th Cir. 2017) (“The con man is the plaintiff, and it is doubtful that he is truly 8 reformed.”).2 He used to run an organization called the Hubman Foundation, until a 9 “federal court in Virginia determined that the Hubman Foundation was not a charity but a 10 sham designed to insulate Hubman from his debts and obligations.” Id. On the day Mr. 11 Hubman dissolved the Hubman Foundation, he became the “president and sole director” 12 of Coexist. Id. 13 Mr. Hubman also used Coexist to solicit supposedly charitable contributions. Id. at 14 905. For example, in 2009, Mr. Hubman met a retired baseball player named Shannon 15 Stewart and persuaded him to lend $2 million to Coexist. Id. Mr. Kirkpatrick alleges that 16 he was responsible for their introduction. (Doc. 1 at ¶ 18). The $2 million was 17 characterized as a “conditional donation” because Mr. Hubman promised the money would 18 be returned in a few months. Coexist Found., 865 F.3d at 905 . Mr. Hubman, through 19 Coexist, then “invested” the money with an individual named Michael Fehrenbacher, who 20 in turn “invested” the money with an entity called Assured Capital. Id. However, Mr. 21 Fehrenbacher soon discovered that Assured Capital “was running a Ponzi scheme.” Id. 22 Eventually Assured Capital returned some of the money, and Mr. Fehrenbacher gave 23 Coexist $1,494,250. Id. 24 Mr. Stewart then sued Mr. Hubman and obtained a stipulated judgment against Mr. 25 Hubman and Coexist for $2 million, and Coexist then sued Mr. Fehrenbacher and obtained 26 a judgment for $694,271.40, which was affirmed by the Seventh Circuit. Coexist Found., [27] 2 The Court also takes judicial notice of this decision, and the one before the trial court in 28 the Northern District of Illinois, Coexist Found., Inc. v. Fehrenbacher, 2016 WL 4091623 , at *6 (N.D. Ill. Aug. 2, 2016). 1 Inc. v. Fehrenbacher, 2016 WL 4091623 , at *3, 6 (N.D. Ill. Aug. 2, 2016), aff’d, 865 F.3d 2 901 (7th Cir. 2017). As of the time of the trial in the later action between Mr. Hubman and 3 Mr. Fehrenbacher, Mr. Hubman had not paid Mr. Stewart any amount of the stipulated 4 judgment. Id. at *6. Nothing before the Court suggests that the $2 million has made its 5 way back through the string of con men to Mr. Stewart. 6 Mr. Hubman has claimed he abandoned his ways as a con man when he joined a 7 church in 2008. Id. at *1. Mr. Krikpatrick’s allegations in the California Proceeding say 8 otherwise.3 As alleged, Mr. Hubman was introduced to Mr. Kirkpatrick in 2008 by a 9 pastor, Ilie Jurca. Over the course of several years, Mr. Hubman convinced Mr. Jurca to 10 lend him hundreds of thousands of dollars through promissory notes. Rarely did Mr. 11 Hubman make any payments. In February 2014, Mr. Hubman told Mr. Jurca that he was 12 about to win a lawsuit that would let him get “his” $2 million back. Mr. Kirkpatrick alleges 13 that, at that time, he decided to enter into an agreement with Mr. Jurca that assigned all of 14 the promissory notes between Mr. Hubman and Mr. Jurca to Mr. Kirkpatrick and Mr. 15 Kirkpatrick’s company, Consulting Direct. These assignments serve as the basis for Mr. 16 Kirkpatrick’s claims of nearly $1 million in damages in the California Proceeding. 17 Here, in the Arizona Proceeding, Mr. Kirkpatrick alleges he entered into a 18 “Consulting Agreement” with Mr. Hubman in 2008 whereby he would find “donors” for 19 Coexist. (Doc. 1 at ¶¶ 2, 11). As compensation for this work, Mr. Kirkpatrick “was to 20 receive a $900,000 annual salary until 2028.” (Id. at ¶ 11). In 2008 and 2009, Mr. 21 Kirkpatrick alleges he found people who “donated” a combined $1,750,000 in art or cash 22 to Coexist. (Id. at ¶ 13). And yet, “[f]or all the donors Kirkpatrick brought in, Kirkpatrick 23 did not receive his $900,000 salary but received” just $10,000 in compensation. (Id. at ¶ 24 14). 25 In addition to the donors Mr. Kirkpatrick found in 2009, Mr. Kirkpatrick also claims 26 a woman, with whom he had previously spoken about donating to Coexist, told Mr. 27 Stewart’s father about possibly donating. (Id. at ¶¶ 15–16). Because Mr. Stewart 28 3 The remaining sentences in this paragraph represents Mr. Kirkpatrick’s allegations as recounted in his First Amended Complaint in the California Proceeding. 1 eventually donated $2 million to Coexist, Mr. Kirkpatrick argues that he himself was “in 2 fact the procuring cause of this donation.” (Id. at ¶ 18). When Mr. Kirkpatrick asked Mr. 3 Hubman about how he met Mr. Stewart, Mr. Hubman only said that he “used to play 4 baseball” with him. (Id.) Mr. Kirkpatrick represents that he came to understand this was 5 untrue in 2019, after reading the Northern District of Illinois’ decision in Coexist Found., 6 Inc. v. Fehrenbacher. (Id.) And because it was really Mr. Kirkpatrick who procured the 7 “donation,” he argues he is entitled to his salary of $900,000 (minus $10,000 that he has 8 already received). (Id. at ¶ 26). 9 II. Procedural Background 10 The Court will briefly discuss this Arizona Proceeding’s several procedural oddities. 11 Mr. Kirkpatrick first attempted to serve Mr. Hubman by serving Mr. Hubman’s father in 12 Oregon. Mr. Kirkpatrick had noted that the address on Mr. Hubman’s driver’s license is 13 the address of a Postal Plus Store and that Coexist’s address is the location of a UPS store. 14 (Doc. 14 at 4).4 The Court notes that, at the time Mr. Kirkpatrick was supposed to serve 15 Mr. Hubman, he was actively engaged in the California Proceeding, in which Mr. Hubman 16 had appeared. In any event, the Court ordered Mr. Kirkpatrick to serve both Defendants 17 by serving the Florida Secretary of State. (Doc. 15 at 4). After this service was made, Mr. 18 Hubman appeared and filed his Motion to Dismiss. (Doc. 23). 19 On March 28, 2022, the Court held a Rule 16 Scheduling Conference, but no party 20 appeared. (Doc. 35). The Court ordered the parties to show cause in writing as to why 21 they failed to appear. Mr. Hubman filed a Response (Doc. 36), but Mr. Kirkpatrick did 22 not. At a show cause hearing, Mr. Kirkpatrick unconvincingly represented to the Court 23 that he “thought” he already had submitted a response. In a subsequent written filing, 24 Kirkpatrick admitted that his “errors and omissions” in failing to obey Court orders are 25 “not acceptable,” and, certainly, they are not. 26 III. Duplicative Litigation 27 The Court will now turn to the question it raised earlier, which is whether the 28 4 Mr. Kirkpatrick does not explain how he came to have a copy of Mr. Hubman’s drivers’ license. 1 Arizona Proceeding is duplicative of the California Proceeding. (Doc. 32). “Sua sponte 2 dismissal of an action duplicative of a parallel action already pending in another federal 3 court is allowable as an exercise of wise judicial administration.” Clayton v. District of 4 Columbia, 36 F. Supp. 3d 91 , 94 n.1 (D.D.C. 2014); Arellano v. Sedighi, 2016 WL 5 4430851, at *2 (S.D. Cal. Aug. 22, 2016) (District Courts possess the power to sua sponte 6 dismiss duplicative claims). District Courts have the “discretion to dismiss a later-filed 7 action if the causes of action and relief sought, as well as the parties or privies to the action, 8 are the same.” Indigo Grp. USA, Inc. v. Ralph Lauren Corp., 690 F. App’x 945, 946 (9th 9 Cir. 2017) (cleaned up). 10 The Court recognizes that the events giving rise to both the California Proceeding 11 and this Arizona Proceeding are part of a larger sordid story and that the parties in both 12 actions are the same. However, the Court cannot find that the actions are duplicative. The 13 California Proceeding’s causes of action arises out of debts owed under the assignments 14 that Mr. Kirkpatrick obtained from Mr. Jurca. This Arizona Proceeding’s causes of action 15 arise out of the Consulting Agreement between Mr. Kirkpatrick and Mr. Hubman. These 16 matters are distinct enough that they cannot be called duplicative. 17 IV. Motion to Dismiss 18 The Court will proceed to address Mr. Hubman’s Motion to Dismiss. A motion to 19 dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. Cook v. Brewer, [20] 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and plain statement 21 showing that the pleader is entitled to relief for its claims. Fed. R. Civ. P. 8(a)(2). This 22 standard does not require “‘detailed factual allegations,’ but it demands more than an 23 unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 24 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). There 25 must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While 26 courts do not generally require “heightened fact pleading of specifics,” a plaintiff must 27 allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, [28] 550 U.S. at 555 . A complaint must “state a claim to relief that is plausible on its face.” Id. 1 at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Iqbal, 556 U.S. at 678 . To determine whether a claim is plausible, courts look to 4 the context of the complaint and draw upon their own “judicial experience and common 5 sense.” Id. at 679. 6 Dismissal of a complaint for failure to state a claim can be based on either the “lack 7 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 8 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In 9 reviewing a motion to dismiss, “all factual allegations set forth in the complaint ‘are taken 10 as true and construed in the light most favorable to the plaintiffs.’” Lee v. City of L.A., 250 11 F.3d 668 , 679 (9th Cir. 2001) (quoting Epstein v. Wash. Energy Co., 83 F.3d 1136 , 1140 12 (9th Cir. 1996)). But courts are not required “to accept as true a legal conclusion couched 13 as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 14 265, 286 (1986)). A defendant may raise a statute of limitations defense in a Rule 12(b)(6) 15 motion, and it will be granted only if the running of the statue is apparent form the 16 complaint’s allegations themselves. Huynh v. Chase Manhattan Bank, 465 F.3d 992 , 997 17 (9th Cir. 2006). 18 Here, Mr. Hubman argues all of Mr. Kirkpatrick claims are time-barred under 19 Florida law and should, therefore, be dismissed. (Doc. 23). Mr. Kirkpatrick argues that 20 under the continuing violation doctrine, all of his claims survive. (Doc. 27 at 1). 21 a. Choice of Law 22 Mr. Hubman assumes that Florida law applies to this entire action because the 23 Consulting Agreement states that it is governed by Florida law. (See Doc. 1 at 19). But 24 this assumption is not entirely correct. As will be explained below, Florida law applies to 25 the Complaint’s contract claims, and Arizona law applies to its tort claims. 26 Because this action arises under the Court’s diversity jurisdiction, the Court applies 27 the choice of law rules of the forum state. Hatfield v. Halifax PLC, 564 F.3d 1177 , 1182 28 (9th Cir. 2009). Here, the Court applies Arizona’s choice of law rules. Arizona separates 1 choice of law determinations for contract claims and tort claims. See, e.g., Magellan Real 2 Est. Inv. Tr. v. Losch, 109 F. Supp. 2d 1144, 1155 (D. Ariz. 2000). 3 For contract claims, Arizona courts apply the Restatement to determine the 4 applicable law. Swanson v. Image Bank, Inc., 77 P.3d 439, 441 (Ariz. 2003). A contract’s 5 choice of law provision is valid and enforceable if the contract issue brought by the parties 6 is “one which the parties could have resolved by an explicit provision in their agreement 7 directed to that issue.” Id. at 442 (quoting Restatement (Second) of Conflict of Laws § 187 8 (1971)). The issue here is whether Mr. Kirkpatrick is entitled to his salary for obtaining 9 “donations” for Coexist. Mr. Kirkpatrick’s compensation is explicitly stated in the 10 Consulting Agreement, as is his salary. (Doc. 1 at 18) (stating Mr. Kirkpatrick would 11 “arrange donations” in consideration for “$900,000” per year). Therefore, the Court will 12 apply Florida law to the Complaint’s contract claims: breach of contract, breach of duty of 13 good faith and fair dealing, and unjust enrichment.5 14 For tort claims, courts apply the law of the state that has “the most significant 15 relationship to both the occurrence and the parties with respect to any particular question.” 16 Bates v. Superior Ct. of State of Ariz., 749 P.2d 1367, 1370 (Ariz. 1988). Courts consider 17 where the injury occurred, where the harm originated, where the parties reside, and where 18 the parties’ relationship might be centered. Id. (citing Restatement (Second) of Conflict of 19 Laws § 145 (1971)). Mr. Kirkpatrick alleges that a “substantial part of the events” giving 20 rise to his claims arose in Arizona, and he alleges he was living in Arizona when he entered 21 into the Consulting Agreement. (Doc. 1 at ¶ 3). At this motion to dismiss phase, the Court 22 will take these allegations as true. See Lee, 250 F.3d at 679. Therefore, the Court will 23 apply Arizona law to the Complaint’s tort claims, which include fraud and constructive 24 fraud. 25 b. Contract Claims 26 Under Florida law, all “legal or equitable” actions arising from a written contract [27] 5 Unjust enrichment claims are contract, not tort, claims. See Synergy Logistics Co. LLC 28 v. Singh, 2021 WL 1625516 , at *7 (Ariz. Ct. App. Apr. 27, 2021), review denied (Apr. 5, 2022). 1 have a five-year statute of limitations. Fla. Stat. § 95.11 (2018). For legal or equitable 2 actions arising out of unwritten contracts, there is a four-year statute of limitations. Id. 3 Generally, the time for breach of contract claims begins to run when there is a breach. State 4 Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996). This is true even when 5 damages occur later, after the breach. Schmidt v. Sabow, 331 So. 3d 781 , 787 (Fla. Dist. 6 Ct. App. 2021). For unjust enrichment claims, the time begins to run “at the time the 7 alleged benefit is conferred and received by the defendant.” Flatirons Bank v. Alan W. 8 Steinberg Ltd. P’ship, 233 So. 3d 1207 , 1213 (Fla. Dist. Ct. App. 2017). 9 Here, the written Consulting Agreement was breached in 2008 and 2009, when Mr. 10 Hubman failed to pay Mr. Kirkpatrick his entire salary. (Doc. 1 at ¶ 14). Mr. Hubman is 11 also alleged to have received the benefit of the $2 million in 2009. Therefore, because this 12 Arizona Proceeding was initiated in 2021, the Florida’s statute of limitations bars the 13 Complaint’s claims for breach of contract, breach of implied contract of good faith and fair 14 dealing, and unjust enrichment. 15 Mr. Kirkpatrick argues that because the Consulting Agreement provides for a yearly 16 salary for every year until 2028, Defendants are technically still in breach for not having 17 paid him in the intervening years and, therefore, his claims are timely. (Doc. 27 at 2). For 18 support, Mr. Kirkpatrick invokes the “general proposition of contract law that in the case 19 of contract obligations payable by installment, the statute of limitations does not begin to 20 run against each installment until the day it becomes due.” H & B Builders, Inc. v. City of 21 Sunrise, 727 So. 2d 1068, 1071 (Fla. Dist. Ct. App. 1999). This may be so, but the specific 22 breach that Mr. Kirkpatrick bases his claims upon—non-payment for 2009—would have 23 started to run on the day such payment was due. This day was, as Mr. Kirkpatrick says, 24 “the first banking day of” the year. (Doc. 27 at 2). Because payment of Mr. Kirkpatrick’s 25 2009 salary was due over five years ago, the contract claims Mr. Kirkpatrick now brings 26 are barred by Florida’s statute of limitations. It is not the case, as Mr. Kirkpatrick implies, 27 that all claims for breach of an installment payment are timely so long as some installments 28 are due within the statute of limitations. Instead, each individual installment has its own 1 expiration date. Put another way, “the statute of limitations starts running against each 2 payment as it becomes due . . . .” Isaacs v. Deutsch, 80 So. 2d 657, 660 (Fla. 1955) 3 (emphasis added). 4 c. Tort Claims 5 The Court turns to whether the tort claims for fraud are barred by the statute of 6 limitations. Under Arizona law, fraud claims must be brought within three-years of “when 7 the defrauded party discovers or with reasonable diligence could have discovered the 8 fraud.” Mister Donut of Am., Inc. v. Harris, 723 P.2d 670, 672 (Ariz. 1986). Here, Mr. 9 Kirkpatrick alleges that in January 2019, he became aware that it was really him who 10 brought in the $2 million after reading the Northern District of Illinois’ 2016 decision. He 11 argues that Mr. Hubman’s false statements regarding who was responsible for this donation 12 constitute fraud. 13 It is very likely that Mr. Kirkpatrick should have reasonably discovered that fraud 14 was afoot simply because of the nature of the parties’ 2008 Consulting Agreement—a 15 broken promise for $900,000 a year in exchange for acquiring donations that would be 16 used for “charitable” purposes. (Doc. 1 at ¶ 12, 19). Mr. Kirkpatrick, however, makes the 17 dubious allegation that he had no idea Mr. Hubman had defrauded him until January 2019. 18 The Court could accept that these fraud claims are timely. See Doe v. Roe, 955 P.2d 19 951, 961 (Ariz. 1998) (“When discovery occurs and a cause of action accrues are usually 20 and necessarily questions of fact for the jury.”). Nevertheless, the Court will still dismiss 21 Mr. Kirkpatrick’s fraud claims, not because they are time-barred, but because they “cannot 22 possibly win relief.” Omar v. Sea-Land Serv., Inc., 813 F.2d 986 , 991 (9th Cir. 1987). 23 To state a claim for fraud, Mr. Kirkpatrick must show “(1) a representation; (2) its 24 falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; 25 (5) the speaker’s intent that it be acted upon by the recipient in the manner reasonably 26 contemplated; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth; 27 (8) the right to rely on it; (9) his consequent and proximate injury.” Echols v. Beauty Built 28 Homes, Inc., 647 P.2d 629, 631 (Ariz. 1982). A claim for constructive fraud does not 1 require a showing of intent, but it adds the requirement that the speaker must have a 2 confidential relationship to the hearer. Dawson v. Withycombe, 163 P.3d 1034, 1057 (Ariz. 3 Ct. App. 2007). 4 Mr. Kirkpatrick cannot possibly win relief on his fraud claims because his injury is 5 entirely unrelated to the question of whether he believed he was responsible for Mr. 6 Stewart’s donation. As alleged, Mr. Kirkpatrick’s injury is the non-payment of his salary 7 under the Consulting Agreement for 2009. In his Complaint, Mr. Kirkpatrick crafts his 8 fraud claims as if his salary were contingent upon the fact that he brought in the $2 million 9 Stewart donation. But the Consulting Agreement does not make Mr. Kirkpatrick’s salary 10 contingent upon the receipt of donations. (Doc. 1 at 18). All Mr. Kirkpatrick is required 11 to do is “[c]ontact potential donors and arrange donations.” (Id.) Even if his salary were 12 contingent upon the receipt of donations, the Complaint already alleges that Mr. 13 Kirkpatrick obtained $650,000 for Coexist in 2009. (Id. at ¶ 13). Therefore, by the 14 Complaints own allegations, Mr. Kirkpatrick was entitled to his $900,000 salary regardless 15 of whether he was the “procuring cause” of Mr. Stewart’s $2 million. Put differently, it 16 was not Mr. Kirkpatrick’s reliance on Mr. Hubman’s representation that caused him to 17 lose his salary. These fraud claims are really just poorly disguised contract claims seeking 18 compensation for a breach that occurred over a decade ago. 19 In sum, the Court will dismiss all of the claims in Mr. Kirkpatrick’s Complaint for 20 being time-barred or for failing to state a plausible claim. 21 V. Leave to Amend 22 Mr. Kirkpatrick may wish to file an amended complaint. Courts are instructed to 23 “freely give leave” to file an amended complaint “when justice so requires.” Fed. R. Civ. 24 P. 15 (a)(2). Here, the Court is strongly inclined to deny leave because everything in this 25 case points towards mischief. See Iqbal, 556 U.S. at 679 (stating that courts use judicial 26 experience and common sense to determine whether a claim is plausible). Principally, the 27 Court finds it odd that not only is Mr. Kirkpatrick claiming responsibility for the transfer 28 of $2 million to a self-proclaimed con man, but also that he is seeking compensation for 1 this deed in the amount of nearly $900,000. Looking beyond the fact that this salary is an 2 outrageous amount for a purported charity to pay a fundraiser (and merely for the attempt 3 at finding donations), it is strange that Mr. Kirkpatrick would not have already brought an 4 action against Mr. Hubman for what amounts to millions of dollars owed under the 5 Consulting Agreement. Stranger yet is that Mr. Kirkpatrick, a seemingly sophisticated 6 individual involved in million-dollar transactions, would proceed unrepresented by 7 counsel. The Court is loath to permit the parties’ use of the federal courts in furtherance 8 of such mischief. 9 If Mr. Kirkpatrick wishes to file an amended complaint, he must first file a motion 10 for leave to file an amended complaint that (1) addresses the Complaint’s deficiencies and 11 (2) convinces the Court that justice requires he be allowed to file another complaint. 12 VI. Motions for Default 13 Finally, Mr. Kirkpatrick has two pending motions for default, which the Court 14 denies as moot. Entry of default may be set aside for good cause. Fed. R. Civ. P. 55(c). 15 That Mr. Kirkpatrick’s Complaint fails to state a claim would constitute good cause, and 16 so the Court finds it is unnecessary to enter default against the Defendants. 17 Accordingly, 18 IT IS HEREBY ORDERED that Defendant Timothy Hubman’s Motion to 19 Dismiss (Doc. 23) is granted. The Court will dismiss Plaintiff Ty Kirkpatrick’s 20 Complaint. 21 IT IS FURTHER ORDERED that Plaintiff Ty Kirkpatrick may file a motion for 22 leave to file a first amended complaint no later than thirty (30) days after this Order’s entry. 23 Any motion must explain why the amended complaint resolves the issues identified in this 24 Order, and it must contain a copy of the proposed first amended complaint. 25 IT IS FURTHER ORDERED that if Plaintiff Ty Kirkpatrick fails to file a motion 26 for leave to file a first amended complaint within thirty (30) days of this Order’s entry, the 27 Clerk of Court shall terminate this matter without further Order of the Court. 28 … 1 IT IS FINALLY ORDERED that Plaintiff Ty Kirkpatrick’s Motions for Default (Docs. 25; 29) are denied as moot. 3 Dated this 6th day of May, 2022. [4] 5 JL — ———— 6 Ke Diangé. 7 United States District Fudge [28] -12-