Maha Visconti v. John Visconti
Filing
12
(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL OF ACTION by Judge Fernando M. Olguin. If plaintiff still wishes to pursue this action, she is granted until 11/16/2016, tofile a First Amended Complaint that: (A) sets forth enough facts to state a claim to relief that is plausible on its face under Rule 12(b)(6); and (B) demonstrates that the court may properly exercise jurisdiction pursuant to Rule 8(a). (vdr)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 16-7726 FMO (MRWx)
Title
Maha Visconti v. John Visconti
Present: The Honorable
Date
November 1, 2016
Fernando M. Olguin, United States District Judge
Vanessa Figueroa
None
None
Deputy Clerk
Court Reporter / Recorder
Tape No.
Attorney Present for Plaintiff(s):
Attorney Present for Defendant(s):
None Present
None Present
Proceedings:
(In Chambers) Order to Show Cause Re: Dismissal of Action
On October 17, 2016, plaintiff Maha Visconti (“plaintiff” or “Visconti”) filed a complaint in this
court against her ex-husband John Visconti (“defendant”), asserting two purported claims for: (1)
“extreme emotional distress[;]” and (2) a “prohibitory injunction” preventing enforcement of a state
court judgment granting custody of plaintiff’s child to defendant. (See Dkt. 1, Complaint at ¶¶ 815). Plaintiff asserts that this case falls within the court’s diversity jurisdiction under 28 U.S.C. §
1332. (See id. at ¶ 1).
Under Federal Rule of Civil Procedure (“Rule”) 8(a), a complaint must contain “a short and
plain statement of the grounds for the court’s jurisdiction [and] showing that the pleader is entitled
to relief[.]” Rule 8(a)(1)-(2). Further, under Rule 12(b)(6), a complaint must be dismissed if it does
not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). The court may sua sponte dismiss
a complaint pursuant to Rule 8(a) or Rule 12(b)(6). See Hearns v. San Bernardino Police Dep’t,
530 F.3d 1124, 1129 (9th Cir. 2008) (“[Rule] 41(b) authorizes a district court to dismiss a complaint
. . . for failure to comply with Rule 8(a).”); Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th
Cir. 1987) (“A trial court may dismiss a claim sua sponte under [Rule] 12(b)(6).”).
With respect to plaintiff’s first claim, California law does not recognize a cause of action for
“extreme emotional distress.” Rather, California law recognizes claims for intentional infliction of
emotional distress (“IIED”), see Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 593 (1979) (defining
the elements of an IIED claim), or for negligence. See Potter v. Firestone Tire & Rubber Co., 6
Cal.4th 965, 984-95 (1993) (holding that, while “there is no independent tort of negligent infliction
of emotional distress[,]” a plaintiff may bring a comparable claim for negligence when “the
defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an
object” or when “the emotional distress arises out of the defendant’s breach of some other legal
duty”). Plaintiff has not alleged facts sufficient to meet the elements of an IIED or negligence
claim. (See, generally, Dkt. 1, Complaint).
With respect to plaintiff’s second claim for injunctive relief pertaining to the custody of her
CV-90 (06/04)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 16-7726 FMO (MRWx)
Title
Date
Maha Visconti v. John Visconti
November 1, 2016
child, it is well-settled that “the domestic relations exception [to the diversity statute] divests the
federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v.
Richards, 504 U.S. 689, 703 (1992). The complaint does not address the domestic relations
exception, (see, generally, Dkt. 1, Complaint), and therefore does not set forth “a short and plain
statement of the grounds for the court’s jurisdiction” pursuant to Rule 8(a).
Based on the foregoing, IT IS ORDERED THAT:
1. If plaintiff still wishes to pursue this action, she is granted until November 16, 2016, to
file a First Amended Complaint that: (A) sets forth enough facts to state a claim to relief that is
plausible on its face under Rule 12(b)(6); and (B) demonstrates that the court may properly
exercise jurisdiction pursuant to Rule 8(a).
2. The First Amended Complaint must be labeled “First Amended Complaint,” filed in
compliance with Local Rule 3-2 and contain the case number assigned to the case, i.e., Case No.
CV 16-7726 FMO (MRWx). In addition, plaintiff is informed that the court cannot refer to a prior
pleading in order to make her First Amended Complaint complete. Local Rule 15-2 requires that
an amended pleading be complete in and of itself without reference to any prior pleading. This
is because, as a general rule, an amended pleading supersedes the original pleading. See
Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established
in our circuit that an amended complaint supersedes the original, the latter being treated thereafter
as non-existent. In other words, ‘the original pleading no longer performs any function[.]”)
(citations and internal quotation marks omitted).
3. Plaintiff is cautioned that failure to timely file the First Amended Complaint will result in
this action being dismissed without prejudice for failure to prosecute, failure to comply with a court
order, and failure to comply with Rule 8(a). See Fed. R. Civ. P. 8(a) & 41(b); Link v. Wabash R.R.
Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388 (1962); Pagtalunan v. Galaza, 291 F.3d 639, 642
(9th Cir. 2002), cert. denied, 538 U.S. 909 (2003).
4. This Order to Show Cause shall be taken under submission pending the court’s review
of plaintiff’s First Amended Complaint.
5. The court notes that plaintiff’s counsel Anthony E. Contreras (“Contreras”) has filed a
Request for Approval of [] Withdrawal of Counsel (Dkt. 10, “Request”), which is currently pending.
Contreras seeks to withdraw as Visconti’s counsel so that Visconti can proceed pro se. In the
event the court grants Contreras’s request to withdraw, Contreras shall serve Visconti with a copy
of this Order and advise Visconti that she must file a First Amended Complaint by the deadline set
forth above, or else this action will be dismissed.
Initials of Preparer
CV-90 (06/04)
CIVIL MINUTES - GENERAL
vdr
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