Danam v. Arizona Board of Education
Filing
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ORDER granting in part and denying in part 36 MOTION to Dismiss. Dismissal for failure to state a claim under Rule 12(b)(6) will be granted, with leave to amend, if Defendants are properly served. Plaintiff's pending Motions (Docs. 31 , 32 , 33 ) are denied as moot. By 7/16/2019, Plaintiff must show good cause why the Court should grant an extension to serve all 18 Defendants under Rule 4, and provide proof that he is in fact a reserve member of the U.S. Armed Forces and has been deployed during the times averred to the Court. Signed by Senior Judge David G Campbell on 5/30/19. (DXD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Rafael Cezar Danam,
Plaintiff,
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ORDER
v.
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No. CV-18-1493-PHX-DGC
Arizona Board of Education, as individual
members of the Arizona Board of Education,
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Defendants.
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Pro se plaintiff Rafael Cezar Danam filed this action against the 18 members of the
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Arizona Board of Education, asserting various state and federal claims and seeking more
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than $2 million in damages. Doc. 25. Defendants have moved to dismiss Plaintiff’s first
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amended complaint on several grounds. Doc. 36. The motion is fully briefed. Docs. 37,
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39. As explained below, Plaintiff must respond to this order by July 16, 2019.
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I.
Background.
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Neither Plaintiff’s first amended complaint nor his response to Defendant’s motion
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clearly explain the relevant factual background for his claims. Defendant notes that
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Plaintiff’s “claims appear to arise out of the Board’s investigation and subsequent
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revocation of Plaintiff’s teaching license.” Doc. 36 at 2. An exhibit attached to Plaintiff’s
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original complaint also refers to his termination and the revocation of his substitute teacher
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certification. Doc. 1 at 9.
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II.
Discussion.
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Defendants assert that Plaintiff failed to properly serve all Defendants; Plaintiff fails
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to state a claim under Rule 12(b)(6); any defamation claims based on events before
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May 16, 2017 are barred by the statute of limitations in A.R.S. § 12-541; Defendants have
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absolute immunity pursuant to A.R.S. § 12-820.01 for state law claims against them; and
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Defendants are not liable for punitive damages.
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A.
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Rule 4 governs service of the complaint and summons on parties. Rule 4(m)
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provides that if “a defendant is not served within 90 days after the complaint is filed, the
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court – on motion or on its own after notice to the plaintiff – must dismiss the action without
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prejudice against that defendant or order that service be made within a specified time. But
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if the plaintiff shows good cause for the failure, the court must extend the time for service
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for an appropriate period.” Fed. R. Civ. P. 4(m). Thus, “Rule 4(m) requires a two-step
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analysis in deciding whether or not to extend the prescribed time period for the service of
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a complaint.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). “First, upon a showing
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of good cause for the defective service, the court must extend the time period. Second, if
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there is no good cause, the court has the discretion to dismiss without prejudice or to extend
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the time period.” Id.; see also Tagata v. Schwarz Pharma., Inc., No. CV 14-2238-TUC-
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JAS, 2014 WL 12642791, at *1 (D. Ariz. Dec. 8, 2014).
Failure to Serve all Defendants.
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Defendants assert that the Court must dismiss this action because Plaintiff failed to
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serve a summons on Defendant Douglass and failed to personally serve the remaining 17
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Defendants within 90 days of filing his complaint on May 16, 2018. Doc. 36 at 3-4.
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Plaintiff has not filed notices of service as required by Rule 4(l), and his response to the
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motion is unclear. He states that the record shows “obstruction of justice” by Defendants
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in receiving service, but he also seems to argue that he executed proper service. Doc. 37
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at 8-9. Plaintiff also requests an “extension for confirmation of service by Fed. R. Civ. P
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(m)” without explanation. Id. at 9. Plaintiff has failed to show that he properly served
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Defendants under Rule 4, and the Court will order Plaintiff to show good cause why an
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extension should be granted and this action should not be dismissed for lack of service.
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Doc. 37 at 8-9.
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One of Plaintiff’s pending motions states that he is now out of the country for the
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month of June 2019 on active military duty, and the Court will not require Plaintiff’s
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showing of good cause during that time. But the Court notes that this is the third time
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Plaintiff has filed a notice of active military service for the U.S. Air Force Reserve since
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the beginning of this case. See Doc. 7 (orders from May 17, 2018 to October 15, 2018);
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Doc. 21 (November 4, 2018 to March 30, 2019).
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The Court has taken several steps to confirm that Plaintiff currently is a reserve
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member of the U.S. Armed Forces. Between April 26 and May 2, 2019, the Court’s staff
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placed 15 calls to various numbers at Nellis Air Force Base. Five calls were placed to
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Chief Master Sergeant Andy Weeks, as identified in the letter filed by Plaintiff at Doc. 7,
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page 5. The Court also attempted to locate Colonel Raymond Tsui, whose signature
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appears on the same letter, but no number was available for him. Phone calls were made
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to and messages left for the First Sergeant of the 555 RHS, and no call was returned. Phone
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calls were made to and messages left for the First Sergeant of the 820th (the public affairs
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office and the base operator at Nellis Air Force Base identified the 820th as the unit to
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which the 555 RHS was assigned), and no call was returned. The individual answering the
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phone at the main number for the 820th had no knowledge of anyone with the last name of
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Danam currently assigned to the 555 RHS. Another person at the 820th, apparently named
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“Snyder,” also confirmed no knowledge of a current member by the name of Danam. Calls
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were placed to the Legal Office at Nellis Air Force Base as well as the Reserve Legal Office
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at Nellis Air Force Base, but were not returned.
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Other than Plaintiff’s own assertions and the letter he filed, the Court has no clear
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evidence, and has been unable to confirm, that he is on reserve status or is deployed.
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Absent such evidence, the Court will not continue to prolong this litigation, especially
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given that Plaintiff has failed to show that Defendants have been served and are properly
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parties to this case. By Tuesday, July 16, 2019, Plaintiff must provide proof that he is on
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reserve status and has been deployed during the periods he has stated to the Court.
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B.
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A successful motion to dismiss under Rule 12(b)(6) must show either that the
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complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its
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theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint
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that sets forth a cognizable legal theory will survive a motion to dismiss as long as it
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contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id., 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
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Dismissal Under Rule 12(b)(6).
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Failure to State a Claim.
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Defendants assert that Plaintiff’s complaint fails to identify specific factual bases
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that Defendants could admit or deny, and only lists legal conclusions. Doc. 36 at 3. The
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Court agrees. Plaintiff’s first amended complaint includes almost no factual allegations
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related to his claims. See Doc. 25. Rather than setting out a “short and plain statement of
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the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(1), Plaintiff’s
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14-page complaint quotes extensively from various federal, state, and international law
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sources, but fails to plead specific factual allegations supporting his claims.
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The caption and substance of Plaintiff’s complaint seem to identify 42 U.S.C.
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§ 1983, federal and state defamation statutes, and the First, Fifth, Sixth, and Fourteenth
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Amendments as the principal bases for his action. Doc. 25 at 1-5, 7-10. He also cites
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Article 2, §§ 4-6 and 32 of the Arizona Constitution. Id. at 2-3.
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To state a claim under § 1983, Plaintiff must allege that an individual acting under
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color of state law violated his constitutional rights or a federal law. To the extent Plaintiff
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brings claims against the Board as an entity, a local governmental entity cannot be liable
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under § 1983 on a respondeat superior theory. Monell v. Dep’t of Soc. Servs., 436 U.S.
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658, 694 (1978). Plaintiff must show a policy, practice, or custom by the entity which
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permitted the alleged constitutional violation to occur. See Christie v. Iopa, 176 F.3d 1231,
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1234-35 (9th Cir. 1999). Alternatively, Plaintiff can show that a government official
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“(1) had final policymaking authority concerning the action alleged to have caused the
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particular constitutional or statutory violation at issue and (2) was the policymaker for the
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local governing body for the purposes of the particular act.” Cortez v. Cty. of Los Angeles,
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294 F.3d 1186, 1189 (9th Cir. 2002) (internal quotations and citation omitted).
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Plaintiff alleges no specific facts supporting a violation of constitutional rights or
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federal law by Defendants, nor a policy, custom, or practice of the Board that violated his
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rights.
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Amendment is inapplicable to this civil action, and his other asserted violations include
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numerous citations to legal sources with no factual support. Doc. 25 at 6-11. Plaintiff
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generally asserts that his complaint is sufficient, Doc. 37 at 5, but points to no factual
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content that allows the court to draw the reasonable inference that Defendants are liable for
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the misconduct alleged. Twombly, 550 U.S. at 556.
The Court cannot discern the basis for Plaintiff’s other claims.
The Sixth
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Plaintiff’s response to Defendants’ motion cites additional legal authority, but fails
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to shed light on the nature of his claims by identifying specific claims for relief and their
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factual support. See Doc. 37. He asserts that he “listed all Defendants and causes of
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violations” in pages 7-10 of his complaint (id. at 5), but those pages include only threadbare
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assertions that various Defendants failed to provide evidence, interview witnesses,
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thoroughly review law and documents, and failed to be impartial, without linking the
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allegations to specific causes of action. Doc. 25 at 7-10.
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With dozens of legal citations and only minimal factual allegations, Plaintiff’s
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complaint identifies no cognizable legal theory supported by “sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
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at 678 (citing Twombly, 550 U.S. at 570). The Court cannot write Plaintiff’s complaint for
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him. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (“The
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court may dismiss a complaint for failure to satisfy Rule 8 if it is so confusing that its ‘true
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substance, if any, is well disguised.’”); see also McHenry v. Renne, 84 F.3d 1172, 1180
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(9th Cir. 1996) (complaint “without simplicity, conciseness and clarity as to whom
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plaintiffs are suing for what wrongs, fails to perform the essential functions of a
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complaint.”).
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2.
Leave to Amend.
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In the Ninth Circuit, “[a] pro se litigant must be given leave to amend his or her
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complaint unless it is absolutely clear that the deficiencies of the complaint could not be
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cured by amendment.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th
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Cir.1988) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)); Waters v. Young,
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100 F.3d 1437, 1441 (9th Cir. 1996) (“As a general matter, this court has long sought to
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ensure that pro se litigants do not unwittingly fall victim to procedural requirements that
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they may, with some assistance from the court, be able to satisfy.”).
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Plaintiff has filed one amended complaint as a matter of course, but Defendants do
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not argue that permitting another amendment would result in prejudice, undue delay, or be
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futile. See Doc. 36 at 5. Plaintiff may still be able to craft a second amended complaint
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that alleges sufficient factual support for his claims. If Plaintiff satisfies the Court’s
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requirements as set forth above, the Court will grant Plaintiff leave to amend.1
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III.
Conclusion.
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In conclusion, by Tuesday, July 16, 2019, Plaintiff must (1) show good cause why
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the Court should grant an extension to serve all 18 Defendants under Rule 4, and
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(2) provide proof that he is in fact a reserve member of the U.S. Armed Forces and has
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been deployed during the times averred to the Court.
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requirements, the Court will permit additional time to serve, and, if service is completed,
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will dismiss Plaintiff’s first amended complaint for failure to state a claim and will grant
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him leave to amend. If Plaintiff does not make the good cause showing explained above,
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the Court will dismiss this action for lack of service. If Plaintiff fails to provide clear
If Plaintiff satisfies these
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Defendants make various other arguments, but the Court cannot address them in
the absence of a clear complaint.
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evidence that he is in fact a reserve member of the U.S. Armed Forces and has been
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deployed during the times averred to the Court, the Court likely will dismiss this case for
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failure to prosecute.
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Plaintiff has filed motions to Amend/Correct Caption of Complaint, Amend/Correct
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Monetary Damage of Complaint, and Authorize Case Management Order. Docs. 31-33.
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These motions will be denied as moot in light of this order.
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IT IS ORDERED:
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1.
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Defendant’s motion to dismiss (Doc. 36) is granted in part and denied in
part. Dismissal for failure to state a claim under Rule 12(b)(6) will be
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granted, with leave to amend, if Defendants are properly served.
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2.
Plaintiff’s pending motions (Docs. 31, 32, 33) are denied as moot.
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3.
By July 16, 2019, Plaintiff must (1) show good cause why the Court should
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grant an extension to serve all 18 Defendants under Rule 4, and (2) provide
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proof that he is in fact a reserve member of the U.S. Armed Forces and has
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been deployed during the times averred to the Court.
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Dated this 30th day of May, 2019.
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