Lopez v. Coca-Cola

Filing 2

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 8/16/2013. Amended Complaint due within 30 days of service of Order. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PEDRO LOPEZ, JR.,
Plaintiff,

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v.

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COCA-COLA.,
Defendant.

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) Case No.: 1:13-cv-01217- LJO – JLT
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) ORDER DISMISSING PLAINTIFF’S
) COMPLAINT WITH LEAVE TO AMEND
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Plaintiff Pedro Lopez, Jr. initiated this action by filing a complaint on August 5, 2013. (Doc. 1).

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For the following reasons, Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND.

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I.

Pleading Requirements

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The Federal Rules of Civil Procedure govern the requirements for filing an adequate complaint

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in the District Court. A complaint must include a statement affirming the court’s jurisdiction, “a short

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and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief

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sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).

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The purpose of the complaint is to give the defendant fair notice of the claims against him, and the

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grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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Thus, a complaint must give fair notice and state the elements of the plaintiff’s claims in a plain and

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succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

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Supreme Court explained,
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Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted).
Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982). When factual allegations are well-pled, a court should assume the

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truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the

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pleading are not entitled to the same assumption of truth. Id.

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The Court has a duty to dismiss a case at any time it determines an action fails to state a claim,

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“notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court

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“may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a

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claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal

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Practice and Procedure, § 1357 at 593 (1963)). However, the Court may grant leave to amend when

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the deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122,

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1127-28 (9th Cir. 2000) (en banc).

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II.

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Plaintiff’s Allegations
Plaintiff alleges he worked for Coca-Cola as a driver, but “was wrongfully terminated for not

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reporting an accident and falsyfing (sic) [his] DVR (Driver Vehicle Report).” (Doc. 1 at 1.) He asserts

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that he was not aware of the accident and his “vehicle had no visible damage.” (Id.) Plaintiff asked his

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supervisor, Ron Hemingway, if there were “any call-ins” on his route, and Mr. Hemingway responded

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there were not. (Id.) However, Plaintiff contends Mr. Hemingway “knew about the accident but kept it

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from [him].” (Id. at 1-2.) According to Plaintiff, at that time he “was on [his] first week back from a

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previous termination that lasted 8 months.” (Id. at 2.) Plaintiff contends he “wasn’t retrained properly”

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and Mr. Hemingway “lied on his report to get [Plaintiff] terminated.” (Id.) As a result, Plaintiff asserts

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he has “severe financial and emotional hardship.” (Id.)

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Plaintiff asserts he “received a right to sue letter” after the Equal Employment Opportunity
Commission dismissed his case. (Doc. 1 at 1).
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III.

Discussion and Analysis
Because Plaintiff does not specify the claims upon which his complaint stands, the Court is

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unable to determine if his “wrongful termination” allegation is based upon state or federal law. In the

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event that it is based upon state law, Plaintiff has not pleaded sufficient facts for the Court to

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determine it has diversity jurisdiction. Although Plaintiff alleges he received the right to sue letter

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from the EEOC, he does not allege sufficient facts for the Court to determine that it has subject matter

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jurisdiction.
Indeed, Plaintiff even fails to allege facts regarding when he was employed by Coca-Cola, the

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date of his termination, and when he received the letter from the EEOC. The Supreme Court
explained:

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[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. 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. [Citation]. 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. [Citation]. Where a complaint pleads
facts that are “merely consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 556 U.S. at 679 (citations omitted). Consequently, the Court must dismiss Plaintiff’s complaint

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because it is nearly devoid of facts.

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IV.

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Conclusion and Order

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Plaintiff will be given an opportunity to file an amended complaint to plead sufficient facts such

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that the Court is able to determine the matter of its jurisdiction and what causes of action Plaintiff seeks

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to state against Defendant. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is

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advised that the Court cannot refer to a prior pleading in order to make his amended complaint

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complete. As a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, once Plaintiff file an amended complaint, the original

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pleading no longer serves any function in the case.

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The amended complaint must bear the docket number assigned this case and must be labeled

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“First Amended Complaint.” Finally, Plaintiff is warned that “[a]ll causes of action alleged in an

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original complaint which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814
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F.2d 565, 567 (9th Cir. 1986) (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981).

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Based upon the foregoing, IT IS HEREBY ORDERED:

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1.

Plaintiffs’ Complaint is DISMISSED with leave to amend; and

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2.

Plaintiff is GRANTED thirty days from the date of service of this Order to file his First
Amended Complaint.

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Plaintiff is cautioned that failure to comply with this order by filing an amended complaint will result

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in a recommendation that this action be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

August 16, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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