Lopez v. Coca-Cola

Filing 4

ORDER DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND; Amended Complaint due by 11/12/2013, signed by Magistrate Judge Jennifer L. Thurston on 10/07/2013. (Flores, E)

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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 -J LT
ORDER DISMISSING PLAINTIFF’S FIRST
AMENDED 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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The Court screened Plaintiff’s complaint on August 19, 2013 to determine whether it has jurisdiction

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over the action, and dismissed Plaintiff’s complaint with leave to amend. (Doc. 2). Pursuant to the

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Court’s order, Plaintiff filed his First Amended Complaint on September 19, 2013. (Doc. 3).
For the following reasons, the Court finds Plaintiff has failed to provide information sufficient

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for the Court to determine that it has jurisdiction over his wrongful termination claim; and Plaintiff’s

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First Amended 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,
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.
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.

Plaintiff’s Allegations

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Plaintiff alleges he worked for Coca-Cola as a driver, but his employment was terminated on

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August 5, 2011. (Doc. 3 at 1). According to Plaintiff, he had previously been suspended from work,

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leading to a termination of his employment on December 10, 2010. Id. at 2. However, Plaintiff was re-

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instated to a different route on July 19, 2011. Id. Plaintiff asserts he “[r]eceived one day of training”

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which “consisted of a slide show and no hands on training” when he returned to work. Id. He reports

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that he asked Ron Hemingway, a supervisor, “for additional help and a ride along with another driver to
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get a feel for the route and punching the accounts into the hand held.” Id. However, Mr. Hemingway

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denied Plaintiff’s request for additional training. Id.
Plaintiff asserts he started driving his second day back at work, and that Mr. Hemingway said to

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give him a call if there were any problems. (Doc. 3 at 3). Plaintiff alleges Mr. Hemingway “was

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responding to [his] phone calls until the day of the accident” on July 27, 2011, when Plaintiff “couldn’t

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get in contact with him.” Id.
On July 28, 2011, Plaintiff asked Mr. Hemingway if there were any “call-ins” on his route, and

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Mr. Hemingway responded there were not. (Doc. 3 at 3). However, Plaintiff contends Mr. Hemingway

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“was aware of the accident and kept it from [him],” because Mr. Hemingway received a complaint via

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e-mail on the morning of July 27, 2011, which reported the Sharon Brown was upset because a driver

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hit her building. Id. at 4, 22. Plaintiff reports he believed he “had brushed up against some tree

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branches.” Id. at 6. Plaintiff contends Mr. Hemingway “allowed [him] to continue driving a company

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vehicle even though [Plaintiff] was involved in an accident” and Mr. Hemingway “didn’t want to allow

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[Plaintiff] time to report the accident.” Id. at 5. Plaintiff reports he inspected the vehicle and did not

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notice any damage. Id. at 4.
Plaintiff alleges that he had a meeting with Coca-Cola and union representatives on August 5,

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2011. (Doc. 3 at 7). He was terminated for not reporting an accident and falsifying information on his

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driver vehicle report. Id. at 8-9. However, Plaintiff believes “the company and Ron Hemingway

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falsyfied [sic] the reports to get [him] terminated. Id. at 8.

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III.

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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 over the matter. Likewise, although Plaintiff alleges he received

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the right to sue letter from the EEOC on May 22, 2013 (Doc. 3 at 37), he does not allege sufficient

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facts for the Court to determine that it has jurisdiction over the matter.

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If, for example, Plaintiff seeks to state a claim for a violation of Title VII, “the jurisdictional
scope of a Title VII claimant’s court action depends upon the scope of both the EEOC charge and the
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EEOC investigation.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (citing Green v. Los

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Angeles County Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989)). Because Plaintiff has

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not provided any information regarding the EEOC charge, the Court is unable to determine whether it

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has jurisdiction over the wrongful termination claim, or if the state court is vested with subject matter

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jurisdiction.

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IV.

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Conclusion and Order
Plaintiff will be given one final opportunity to plead sufficient facts such that the Court is able

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to determine the matter of its jurisdiction and what causes of action Plaintiff seeks to state against

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Defendant. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is advised that the

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Court cannot refer to a prior pleading in order to make his amended complaint complete. As a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Thus, once Plaintiff file an amended complaint, the original pleading no longer serves any

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function in the case. The amended complaint must bear the docket number assigned this case and must

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be labeled “Second Amended Complaint.”

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Based upon the foregoing, IT IS HEREBY ORDERED:

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1.

Plaintiff’s First Amended Complaint is DISMISSED with leave to amend;

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2.

Plaintiff is GRANTED thirty days from the date of service of this Order to file a
Second Amended Complaint; and

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3.

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

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complaint will result in a recommendation that this action be dismissed pursuant to

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Local Rule 110.

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IT IS SO ORDERED.
Dated:

October 7, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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