Sanders v. Delta Airlines

Filing 36

ORDER granting 33 Motion for Judgment on the Pleadings. Plaintiff SHALL HAVE thirty (30) days to file an amended complaint. Failure to submit a copy along with the original pleading or document will result in the pleading or document being stric ken without further notice to Plaintiff. Plaintiff is hereby ORDERED TO SHOW CAUSE why he should not be held in contempt or Court or be otherwise sanctioned for his failure to comply with the Courts January 17, 2014, Order by filing a writing with this Court within thirty (30)days of the date of this Order. Alternatively, Plaintiff shall file a Notice of Change ofAddress within thirty (30) days of the date of this Order. Signed by Judge Cindy K Jorgenson on 6/20/14.(SMBE)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

DONALD R. SANDERS,

10

Plaintiff,

11

ORDER

v.

12

No. CIV 13-1440-TUC-CKJ

DELTA AIRLINES, INC.,

13

Defendant.

14
15
16

Pending before the Court is Defendant’s Motion for Judgment on the Pleadings.
(Doc. 33.) Plaintiff has not filed a response.

17
18

Factual and Procedural Background1

19

Plaintiff Donald Sanders (Sanders) purchased a ticket from Delta Air Lines, Inc.

20

(hereinafter “Delta”) to fly to Egypt on or about March 20, 2012. (Doc. 21-2 at 1.)

21

Ostensibly, this trip did not take place, and Defendant, Delta, eventually refunded the

22

cost of the ticket to Sanders. (Doc. 29 at 1.) On January 23, 2013, Plaintiff filed a pro se

23

Complaint in the Supreme Court of the State of New York alleging that Delta “denied

24

him and his [dog the right] to fly.” (Complaint, ¶3)

25
26
27
28

1

When evaluating a motion for judgment on the pleadings, the court construes the
facts in the light most favorable to the non-moving party. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). Unless otherwise noted, the facts come from the Plaintiff’s
Complaint. However, due to the scantiness of facts in the Complaint, additional factual
and procedural background has been supplemented through other documents filed with
the Court.

1
2
3
4
5
6
7

Delta removed the case to the United States District Court, Eastern District of New
York pursuant to 28 U.S.C. § § 1441 and 1332. (Doc. 1.) On October 23, 2013, Delta’s
Motion to Change Venue to the District of Arizona, pursuant to 28 U.S.C. § 1404(a), was
granted. (Docs. 20 and 23.)
On January 27, 2014, Delta filed a Motion for Judgment on the Pleadings. Sanders
has not filed a response.2

8
9
10
11

Judgment on the Pleadings Standard
“After the pleadings are closed – but early enough not to delay trial – a party may
move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The Ninth Circuit has said

12

“that Rule 12(c) is functionally identical to Rule 12(b)(6) and that the same standard of

13

review applies to motions brought under either rule.” Cafasso, U.S. ex rel. v. Gen.

14

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks

15

omitted). Therefore, dismissal by granting a motion for judgment on the pleadings is only

16

appropriate if the complaint's factual allegations, together with all reasonable inferences,

17

fail to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

18

(establishing the pleading standard for Rule 12(b)(6) motions). While a complaint need

19

not plead “detailed factual allegations,” the factual allegations it does include “must be

20

enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

21
22
23
24
25
26
27
28

2

Failure to respond to defendant’s motions provides the Court with the discretion
to grant the motion on independent grounds. LRCiv 7.2(i) (stating that if the required
answering memorandum is not filed, it may be deemed as consent to the granting of the
motion and the Court may dispose of the motion summarily); see also Wystrach v.
Ciachurski, 267 F. App'x 606, 609 (9th Cir. 2008) (affirming the district court's dismissal
pursuant to Arizona Local Rule 7.2(i)); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)
(affirming the district court’s dismissal of a pro se plaintiff’s Complaint pursuant to a
local Nevada rule that stated “[t]he failure of the opposing party to file a memorandum of
points and authorities in opposition to any motion shall constitute a consent to the
granting of the motion”). Prior to granting the motion on the basis of the local rule, the
Court must weigh the following factors: “(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice
to the defendants; (4) the public policy favoring disposition of cases of their merits; and
(5) the availability of less drastic sanctions.” Ghazali, 46 F.3d at 53.
-2-

1
2
3
4
5
6
7
8
9
10
11

Twombly, 550 U.S. 544, 545 (2007). If there remains “no genuine dispute as to any
material fact the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
When evaluating a defendant’s Rule 12(c) motion, the allegations in the complaint
must be construed in the light most favorable to the plaintiff. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003).
However, a formulaic recitation of the elements of a cause of action is not sufficient to
establish a claim, and legal conclusions are not entitled to an assumption of truth. Iqbal,
556 U.S. at 679.
If a court determines that dismissal is appropriate, a plaintiff must be given at least
one chance to amend a complaint when a more carefully drafted complaint might state a

12

claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Moreover, when dismissing

13

with leave to amend, a court is to provide reasons for the dismissal so a plaintiff can

14

make an intelligent decision whether to file an amended complaint. See Eldridge v.

15

Block, 832 F.2d 1132 (9th Cir. 1987).

16
17

Defendant’s Motion for Judgment on the Pleadings

18

In the present case, Plaintiff’s four page Complaint provides a fragmented, loosely

19

related backstory of the Plaintiff’s life and struggles, including unspecific allegations of

20

racial and religious discrimination by the “Obama Administration,” the “State

21

Department,” and other persons not parties to this case. (Complaint, ¶7-17.) For example,

22

Plaintiff states that he was a “peacemaker” in northern Uganda and was told, by an

23

undisclosed party, he would not receive some form of monthly payments unless he

24

returned to America. (Id. at ¶11-12.) It appears Plaintiff alleges he became ill upon his

25

return to America and was denied medical treatment at a Veterans Administration

26

Hospital “because [he] is a prophet and a man of God.” (Id. at ¶7.) Plaintiff’s only

27

statement in the Complaint that can be construed as remotely or causally related to Delta

28

is that he, along with his canine companion, was sometime thereafter denied permission
-3-

1
2
3
4
5
6
7
8
9
10
11

to board an unspecified flight to return to “Africa for religious healing.” (Id. at ¶3-4)
However, Plaintiff fails to provide any further specifics to this claim, which leaves the
Court in the dark as to basic facts such as a date, time, location, or reason for Delta’s
decision - beyond a veiled allegation that the State Department is aware he is a black
male.
The only claim within the realm of plausibility that Plaintiff could be alleging
against Delta is a racial discrimination claim under 42 U.S.C. § 1981(b) for breach of the
airline ticket contract. Yet, in order for a claim under § 1981 to survive judgment on the
pleadings, a plaintiff must allege “that: (1) he or she is a member of a racial minority; (2)
the defendant had an intent to discriminate on the basis of race; and (3) the discrimination

12

concerned one or more of the activities enumerated in the statute.” Rutstein v. Avis Rent-

13

A-Car Sys., Inc., 211 F.3d 1228, 1235 (11th Cir. 2000). Here, the Plaintiff failed to allege

14

the “critical” second element, see id., that Delta did not allow him to board a plane,

15

thereby breaching their contract with Plaintiff, based on racial animus. Therefore, this

16

claim could not survive a motion for judgment on the pleadings.

17

The Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809

18

F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds, in attempting to decipher

19

a complaint or read in claims that do not exist. Moreover, failure to set forth claims in a

20

discernible manner places the onus on the Court to decipher which, if any, facts support a

21

claim, as well as to determine whether a plaintiff is entitled to the relief sought. Haynes

22

v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (D.C.Va. 1981). Even construed

23

liberally, Plaintiff fails to articulate a claim upon which relief can be granted.

24

However, the Court finds that Plaintiff may be able to state a valid claim upon

25

careful redrafting of his Complaint. Therefore, the Court is dismissing the action with

26

leave to amend in order to provide Plaintiff with the ability to file an amended complaint

27

if he so pleases. Bank, 928 F.2d at 1112. Any amended complaint filed by Plaintiff must

28

be retyped or rewritten in its entirety and may not incorporate any part of the original
-4-

1
2
3
4
5
6
7

complaint by reference. Any amended complaint submitted by Plaintiff shall be clearly
designated as an amended complaint on the face of the document.
Plaintiff should take notice that failure to timely comply with every provision of
this Order, may result in this action being dismissed pursuant to Rule 41(b), Fed.R.Civ.P.
See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (District Court may dismiss action
for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992).

8
9
10
11

Defendant’s May 28, 2014 Correspondence (Doc. 35)
Finally, defense counsel has notified the Court in a filing that Sanders has been
vociferously communicating the imminency of extreme acts of violence he will perform

12

on defense counsel; threats ranging from personal decapitation at Plaintiff’s own hands to

13

even more radical terroristic threats against the United States as a whole. (Doc. 35.)

14

Plaintiff has not filed a response. This egregious and abusive behavior is completely

15

unacceptable and is in violation of a myriad of ethical rules of conduct. Although a pro se

16

litigant may be entitled to great leeway by the Court when construing their filings, see

17

Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995), it does not excuse him

18

from following basic rules of ethics and civility. See Nelson v. Eaves, 140 F. Supp. 2d

19

319, 322 (S.D.N.Y. 2001) (dismissing pro se litigant’s complaint with prejudice after he

20

wrote threatening letter to opposing counsel); see also Cameron v. Lambert, WL 4823596

21

(S.D.N.Y. Nov. 7, 2008) (granting a sanction of dismissal for pro se plaintiff’s use of

22

abusive and threatening language). The Court orders Plaintiff to act in a civil manner at

23

all times with regards to the proceedings moving forward.

24

Failure to comply with this Court Order may result in civil contempt sanctions. A

25

party commits civil contempt by disobeying “a specific and definite court order by failure

26

to take all reasonable steps within the party's power to comply.” Reno Air Racing Ass'n,

27

Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006) (citation omitted). The purpose of

28

civil contempt sanctions is to incentive the contemnor to comply with the court’s orders.
-5-

1
2
3
4
5
6
7
8
9
10
11

Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir.1992). Sanctions can
include fines or imprisonment.
Furthermore, the Court may impose sanctions on a party for failing to obey a
scheduling or other pretrial order pursuant to Fed.R.Civ.P. 16(f). Local Rule
83.1(f)(1)(A) also provides that the court may, “upon its own initiative” impose
appropriate sanctions upon a party who, “without just cause” violates or fails to conform
to the Federal Rules of Civil Procedure or any order of the court. This rule permits the
Court to order a sanction that is just under the circumstances, which may include the
imposition of a fine, or an order imposing costs and attorney fees. "District courts have
broad discretion in interpreting and applying their local rules," Simmons v. Navajo

12

County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (citing Miranda v. Southern Pacific

13

Transp. Co., 710 F.2d 516, 521 (9th Cir.1983), and the Court will not hesitate to use any

14

means it finds appropriate to compel the parties to comply with this Order.

15

Harassing, coercive, argumentative, threatening, or similar statements to opposing

16

counsel will not be permitted. See e.g., Alvarado Morales v. Digital Equipment

17

Corporation, 669 F.Supp. 1173, 1187 (D.Puerto Rico 1987) (“The federal courts do not

18

provide a forum for mudslinging, name calling and ‘privileged’ defamation.”); Talbot v.

19

Robert Matthews Distributing Co., 961 F.2d 654, 664–65 (7th Cir.1992) (scandalous

20

portion of pleading may be stricken); Wilkerson v. Butler, 229 F.R.D. 166, 170

21

(E.D.Cal.2005) (allegation is “impertinent” if it is not responsive or relevant to the issues;

22

it is “scandalous” if it improperly casts a derogatory light on someone); Global View Ltd.

23

Venture Capital v. Great Central Basin Exploration, L.L.C., 288 F.Supp.2d 473

24

(S.D.N.Y. 2003) (calling defendants unscrupulous and con artists was nothing more than

25

name-calling and did not add to substantive claims). If Plaintiff does not proceed with

26

civility in this case, the Court will impose appropriate sanctions, including, if necessary,

27

dismissal of Plaintiff’s Complaint.

28

-6-

1

Plaintiff’s Address of Record

2
3
4
5

On January 17, 2014, Court ordered Plaintiff Donald R. Sanders to provide the
Court with his current address (i.e., file a Notice of Change of Address, see LRCiv
83.3(d)) by no later than January 21, 2014. See Doc. 30. As of this date, Plaintiff has not
complied with the Court’s order.

6
7
8
9

The Court will order Plaintiff to show cause why he should not be held in
contempt or be subject to other sanction for failing to comply with the Order of the Court.
The Court, alternatively, will set a deadline for Plaintiff to comply with the Order of the
Court.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Accordingly, IT IS ORDERED:
1.

Delta’s Motion for Judgment on the Pleadings (Doc. 33) is GRANTED

without prejudice so that Plaintiff may have a chance to amend his Complaint and state a
claim on which relief may be granted.
2.

Plaintiff SHALL HAVE thirty (30) days from the date of filing of this

Order to file an amended complaint. Any amended complaint filed by Plaintiff must be
retyped or rewritten in its entirety and may not incorporate any part of the original
complaint by reference. Any amended complaint submitted by Plaintiff shall be clearly
designated as an amended complaint on the face of the document.
3.

A clear, legible copy of every pleading or other document filed SHALL

ACCOMPANY each original pleading or other document filed with the Clerk for use by
the District Judge to whom the case is assigned.

See L.R.Civ. 5.4; see also ECF

Administrative Policies and Procedures Manual § II.D.3. Failure to submit a copy
along with the original pleading or document will result in the pleading or document
being stricken without further notice to Plaintiff.
4.

Plaintiff shall not threaten defense counsel and shall not use harassing or

abusive language in communicating with defense counsel or the Court. Furthermore,
Plaintiff shall treat defense counsel and the Court with civility.
-7-

1
2
3
4
5
6
7
8
9
10
11
12
13
14

5.

Plaintiff is hereby ORDERED TO SHOW CAUSE why he should not be

held in contempt or Court or be otherwise sanctioned for his failure to comply with the
Court’s January 17, 2014, Order by filing a writing with this Court within thirty (30)
days of the date of this Order. Alternatively, Plaintiff shall file a Notice of Change of
Address within thirty (30) days of the date of this Order.
6.

At all times during the pendency of this action, Plaintiff shall immediately

advise the Court of any future change of address and its effective date. Such notice shall
be captioned "NOTICE OF CHANGE OF ADDRESS". The notice shall contain only
information pertaining to the change of address and its effective date. The notice shall
not include any motions for any other relief. Plaintiff shall serve a copy of the Notice of
Change of Address on all served opposing parties.

Failure to file a NOTICE OF

CHANGE OF ADDRESS may result in the dismissal of the action for failure to
prosecute pursuant to Rule 41(b), Fed.R.Civ.P.
Dated this 20th day of June, 2014.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-