Ramos v. Wal-Mart

Filing 12

ORDER that the Clerk shall enter judgment dismissing 11 Plaintiff's Fourth Amended Complaint with prejudice. The Clerk shall terminate this case. Signed by Judge Neil V Wake on 3/11/11. (LSP)

Ramos v. Wal-Mart

Doc. 12

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Tomas Ramos, Plaintiff, vs. Wal-Mart,

13 Defendant. 14 15

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No. CV-10-02508-PHX-NVW ORDER

Before the Court is Plaintiff's fourth amended Complaint. (Doc. 11.) Plaintiff's 16 initial complaint was dismissed by this Court pursuant to 28 U.S.C. § 1915(e)(2). (Doc. 17 4.) Plaintiff has been allowed four opportunities to amend his complaint (Docs. 4, 6, 8, 18 10), but has failed to comply with the federal pleading requirements or state a plausible 19 claim for relief in any of his subsequent amended complaints. In its February 14, 2011 20 Order dismissing Plaintiff's third amended complaint (Doc. 10), the Court warned 21 Plaintiff that if he did not provide evidence of an EEOC notice of right to sue letter other 22 than the May 29, 2009 notice which Plaintiff had attached to his original complaint, then 23 the Court would dismiss Plaintiff's complaint with prejudice for failure to state a claim 24 because any claims related to the May 29, 2009 notice are time-barred. 25 In his fourth amended complaint, Plaintiff again attached the May 29, 2009 notice 26 and failed to provide the Court with evidence showing his claims are not time-barred. 27 28

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Although Plaintiff has attached to his complaint multiple envelopes marked "return to sender," the May 29, 2009 EEOC letter clearly states that a claimant has only 90 days from the date that delivery of the Notice was attempted at [claimant's] last known address of record or 90 days of receipt of the Notice, whichever is earlier, to file suit in Federal Court, or [claimant] will lose [his] right to file a lawsuit . . . . (Doc. 11 (emphasis in original).) Even if Plaintiff did not actually receive the May 29,

6 2009 notice until October 2010, his claims are still time-barred because delivery of the 7 notice was apparently attempted on May 29, 2009 and June 9, 2009, as evidenced by the 8 envelopes attached to Plaintiff's fourth amended complaint. (Doc. 11.) Plaintiff did not 9 commence this action until November 2010, more than 90 days after delivery of the 10 notice was attempted. Therefore, Plaintiff has again failed to state a claim for which 11 relief could be granted. 12 As the Court previously warned, because Plaintiff's fourth amended complaint is 13 still deficient and Plaintiff has not alleged facts showing his claims are not time-barred, 14 this action will be dismissed with prejudice. See Sisseton-Wahpeton Sioux Tribe v. 15 United States, 90 F.3d 351, 355 (9th Cir. 1996) (noting court's discretion to deny leave to 16 amend is particularly broad where Plaintiff has previously been permitted to amend his 17 complaint). 18 IT IS THEREFORE ORDERED that the Clerk shall enter judgment dismissing 19 Plaintiff's fourth Amended Complaint (Doc. 11) with prejudice. The Clerk shall 20 terminate this case. 21 22 23 24 25 26 27 28 -2DATED this 11th day of March, 2011.