Lee v. Vandenberghe Properties

Filing 8

ORDER to Dismiss Action re: 6 Motion to Dimiss, signed by District Judge Lawrence J. O'Neill on 2/13/13. Amended Complaint due by 3/6/2013. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAY LEE LEE,

CASE NO. CV F 13-0180 LJO MJS

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Plaintiff,
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ORDER TO DISMISS ACTION
(Doc. 6.)

vs.
VANDENBERGHE PROPERTIES,
INC.,

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Defendant.
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INTRODUCTION

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Defendant Vandenberghe Properties, Inc. (“VPI”) seeks to dismiss pro se plaintiff May Lee Lee

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(“Ms. Lee’s) claims arising from her apparent apartment manager status and/or apartment eviction. Ms.

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Lee’s operative complaint is so conclusory and vague that this Court DISMISSES with leave to amend

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the complaint’s claims and VACATES the March 28, 2013 hearing on VPI’s F.R.Civ.P. 12 motions.

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BACKGROUND

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Prior to removal to this Court, Ms. Lee filed on January 24, 2012 in Fresno County Superior

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Court her operative California Judicial Council form complaint (“complaint”). The complaint merely

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references “violation of civil rights: discrimination, violation of FMLA, wrongful termination, wrongful

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eviction, violation of privacy act, and violation of employment laws.” Photographs and correspondence

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are attached to the complaint and lack a meaningful frame of reference. VPI was not served with the
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complaint until January 8, 2013 to demonstrate Ms. Lee’s lack of diligence to pursue purported claims.

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DISCUSSION

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Sua Sponte Dismissal

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The complaint fails to allege cognizable claims.

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“A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6). . . . Such dismissal

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may be made without notice where the claimant cannot possibly win relief.” Omar v. Sea-Land Service,

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Inc., 813 F.2d 986, 991 (9th Cir. 1987); see Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981). Sua

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sponte dismissal may be made before process is served on defendants. Neitzke v. Williams, 490 U.S.

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319, 324 (1989) (dismissals under 28 U.S.C. § 1915(d) are often made sua sponte); Franklin v. Murphy,

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745 F.2d 1221, 1226 (9th Cir. 1984) (court may dismiss frivolous in forma pauperis actions sua sponte

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prior to service of process on defendants).

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“When a federal court reviews the sufficiency of a complaint, before the reception of any

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evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether

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a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the

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claims.” Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development

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Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either

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a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal

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theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of

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Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).

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In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to

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the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff

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can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80

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F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required “to accept as true allegations that

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are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead

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Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court “need not

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assume the truth of legal conclusions cast in the form of factual allegations,” U.S. ex rel. Chunie v.

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Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir.1986), and a court must not “assume that the [plaintiff] can

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prove facts that it has not alleged or that the defendants have violated . . . laws in ways that have not been
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alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters,

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459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if “it is clear that

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the complaint could not be saved by an amendment.” Livid Holdings Ltd. v. Salomon Smith Barney,

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Inc., 416 F.3d 940, 946 (9th Cir. 2005).

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A “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than

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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted).

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Moreover, a court “will dismiss any claim that, even when construed in the light most favorable to

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plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing

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Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, “a complaint . . . must contain either

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direct or inferential allegations respecting all the material elements necessary to sustain recovery under

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some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v.

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Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

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In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,1949 (2009), the U.S. Supreme Court
explained:
. . . a complaint must contain sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” . . . A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. . . . The plausibility standard is not
akin to a “probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. (Citations omitted.)

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After discussing Iqbal, the Ninth Circuit Court of Appeals summarized: “In sum, for a complaint

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to survive [dismissal], the non-conclusory ‘factual content,’ and reasonable inferences from that content,

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must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572

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F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, 556 U.S. 662, 129 S.Ct. at 1949).

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The U.S. Supreme Court applies a “two-prong approach” to address dismissal:

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First, the tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice. . . . Second,
only a complaint that states a plausible claim for relief survives a motion to dismiss. . .
. Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. . . . But where the well-pleaded facts do not permit the court to infer

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more than the mere possibility of misconduct, the complaint has alleged – but it has not
“show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

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In keeping with these principles a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations. When there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. 662, 129 S.Ct. at 1949-1950.

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The complaint is subject to dismissal in the absence of claims supported by a cognizable legal

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theory or sufficient facts alleged under a cognizable legal theory. The complaint merely identifies legal

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theories and offers no facts.

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Failure To Satisfy F.R.Civ.P. 8

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The complaint is subject to global attack for failure to satisfy F.R.Civ.P. 8, which requires a

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plaintiff to “plead a short and plain statement of the elements of his or her claim, identifying the

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transaction or occurrence giving rise to the claim and the elements of the prima facie case.” Bautista

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v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000).

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F.R.Civ.P. 8(d)(1) requires each allegation to be “simple, concise, and direct.” This requirement

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“applies to good claims as well as bad, and is the basis for dismissal independent of Rule 12(b)(6).”

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McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). “Something labeled a complaint but written

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more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to

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whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.”

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McHenry, 84 F.3d at 1180. “Prolix, confusing complaints . . . impose unfair burdens on litigants and

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judges.” McHenry, 84 F.3d at 1179.

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Moreover, a pleading may not simply allege a wrong has been committed and demand relief.

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The underlying requirement is that a pleading give “fair notice” of the claim being asserted and the

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“grounds upon which it rests.” Yamaguchi v. United States Department of Air Force, 109 F.3d 1475,

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1481 (9th Cir. 1997). Despite the flexible pleading policy of the Federal Rules of Civil Procedure, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v.

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Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). A plaintiff must allege with at least some

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degree of particularity overt facts which defendant engaged in to support plaintiff’s claim. Jones, 733
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F.2d at 649. A complaint does not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. 662, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct.

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1955). The U.S. Supreme Court has explained:

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While, for most types of cases, the Federal Rules eliminated the cumbersome
requirement that a claimant “set out in detail the facts upon which he bases his claim,”
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added),
Rule 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to
relief. Without some factual allegation in the complaint, it is hard to see how a claimant
could satisfy the requirement of providing not only “fair notice” of the nature of the
claim, but also “grounds” on which the claim rests.

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Twombly, 550 U.S. at 556, n. 3, 127 S.Ct. 1955.

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The complaint fails to satisfy F.R.Civ.P. 8. The complaint lacks facts of VPI’s specific

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wrongdoing to provide fair notice as to what VPI is to defend. The complaint and its attachments make

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passing references to “FMLA” and “eviction.” A mere reference to a legal theory or claim does not

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substantiate a sufficiently pled claim or complaint. The complaint lacks cognizable claims or legal

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theories upon which to support VPI’s liability.

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CONCLUSION AND ORDER

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For the reasons discussed above, this Court:

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DISMISSES without prejudice this action and the complaint’s entire claims;

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ORDERS Ms. Lee, no later than March 6, 2013, to file and serve an amended complaint

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which satisfies federal pleading requirements and which are addressed above;

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3.

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complaint; and

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4.

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ADMONISHES Ms. Lee that this Court will dismiss this action if Ms. Lee fails to
comply with this order and fails to file timely an amended complaint.

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ORDERS VPI, no later than March 22, 2013, to file and serve a response to the amended

IT IS SO ORDERED.
Dated:

February 13, 2013

/s/ Lawrence J. O'Neill
66h44d
UNITED STATES DISTRICT JUDGE

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