Davis v. American Express Prepaid Card Management Corporation

Filing 23

ORDER DENYING MOTION FOR EXTENSION OF TIME 21 ; DENYING REQUEST FOR RECONSIDERATION 22 ; FINDINGS AND RECOMMENDATION TO DISMISS COMPLAINT WITH PREJUDICE AND WITHOUT LEAVE TO AMEND 1 signed by Magistrate Judge Michael J. Seng on 4/18/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 5/22/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEIGH DAVIS,

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Plaintiff,

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CASE NO. 1:16-cv-00591-MJS
ORDER DENYING MOTION FOR
EXTENSION OF TIME

v.
(ECF NO. 21)
AMERICAN EXPRESS PREPAID
CARD MANAGEMENT
CORPORATION,

ORDER DENYING REQUEST FOR
RECONSIDERATION

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Defendant.

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(ECF NO. 22)

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FINDINGS AND RECOMMENDATION TO
DISMISS COMPLAINT WITH PREJUDICE
AND WITHOUT LEAVE TO AMEND

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(ECF NO. 1)

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THIRTY
(30)
DEADLINE

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DAY

OBJECTION

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I.

Procedural History

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Plaintiff Leigh Davis proceeds pro se proceeds pro se and in forma pauperis in

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this complaint against American Express Prepaid Card Management Corporation,

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seeking relief under the Federal Credit Reporting Act, the Federal Credit Card

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Responsibility and Disclosure Act, and various provisions of state law. (ECF No. 1.)

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On August 26, 2016, the undersigned screened Plaintiff’s complaint and

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concluded that it did not state a claim that would confer jurisdiction on the Court. The

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undersigned recommended that the complaint be dismissed with leave to amend. (ECF

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No. 9.) Before the findings and recommendations were addressed by the District Judge,

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Plaintiff filed an interlocutory appeal. (ECF No. 13.) The appeal was dismissed for lack of

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jurisdiction. (ECF No. 16.) Thereafter, the District Judge adopted the findings and

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recommendation and granted Plaintiff thirty days in which to file an amended complaint.

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(ECF No. 21.)

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On January 12, 2017, Plaintiff filed a motion for a fourteen day extension of time

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to file an amended complaint. (ECF No. 21.) On March 1, 2017, Plaintiff filed a document

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styled, “Notice: 1. Confirming Court is intentionally violating ADA and 2. Objection to the

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Court’s Order to file amended complaint and submitting on the original complaint.” (ECF

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No. 22.)

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II.

Discussion

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Plaintiff states that she does not intend to amend and instead wishes to proceed

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with her original complaint. Thus, Plaintiff has elected to stand on her complaint, despite

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the deficiencies previously noted by the Court. See Edwards v. Marin Park, Inc., 356

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F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). In light of

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Plaintiff’s election, the undersigned’s prior screening order, and the District Judge’s prior

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review of that screening order, the Court will recommend that the complaint be

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dismissed for failure to establish subject matter jurisdiction.
Furthermore, in light of Plaintiff’s election not to amend, the Court will deny as

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moot the motion for extension of time in which to file an amended complaint.

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III.

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Other Requests
Plaintiff claims that the Court is in violation of the Americans with Disabilities Act

because it previously denied her request for leave to file electronically. (ECF No. 9.)

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To the extent Plaintiff seeks reconsideration of the Court’s prior order,

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reconsideration will be denied. “A motion for reconsideration should not be granted,

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absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 880 (9th Cir. 2009). “A motion for reconsideration may not be used to raise

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arguments or present evidence for the first time when they could reasonably have been

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raised in earlier litigation.” Id.

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considered by the court before rendering its original decision fails to carry the moving

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party's burden.” U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir.

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2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856-57

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(D.N.J. 1992)). Similarly, Local Rule 230(j) requires that a party seeking reconsideration

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show that “new or different facts or circumstances are claimed to exist which did not

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exist or were not shown upon such prior motion, or what other grounds exist for the

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motion . . . .”

Moreover, “recapitulation of the cases and arguments

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Pursuant to Eastern District of California Local Rule 133(b)(2), “[a]ny person

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appearing pro se may not utilize electronic filing except with the permission of the

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[assigned judge].” (emphasis in original.) A request to file electronically must set out an

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explanation for the exception. E.D. Local Rule 133(b)(3). Plaintiff’s request stated that

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attorneys who have not made an appearance in this action wish to view court

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documents, and that Plaintiff has a recognized disability. She further stated that leaving

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her home, making copies, and mailing copies to the Court caused her financial hardship.

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The Court concluded that an exception was not warranted on these grounds. Plaintiff

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fails to present a basis for reconsideration. Indeed, Plaintiff has submitted numerous

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filings in this action; her inability to file electronically does not appear to have hampered

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her ability to proceed with this case.

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To the extent Plaintiff contends that the Court is in violation of the Americans with

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Disabilities Act, neither the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §

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12101, et seq., nor § 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29

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U.S.C. § 794, appears to apply to Plaintiff’s request. The plain language of Title II the

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ADA excludes the federal government from the reach of the statute. 42 U.S.C. §

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12131(1) (defining a “public entity” as any state or local government, instrumentality

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thereof, or the National Railroad Passenger Corporation). Additionally, several courts

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have found that the ADA does not apply to the federal government. See, e.g., Mary Jo.

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C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 170 n.11 (2d Cir. 2013) (“Title II of the

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ADA is not applicable to the federal government[.]” (citation and internal quotation marks

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omitted)); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (“[T]he entire federal

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government is excluded from the coverage of the ADA”). Similarly, the Rehabilitation Act

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does not apply to the federal courts: it only covers Executive agencies, the United States

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Postal Service, and certain categories of programs and activities receiving Federal

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funding. See 29 U.S.C. § 794(a). Those programs and activities do not include the

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courts. See 29 U.S.C. § 794(b).
To the extent Plaintiff seeks reconsideration of the Court’s prior order regarding

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electronic filing, reconsideration will be denied.

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IV.

Conclusion, Recommendation, and Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s motion for extension of time (ECF No. 21) is DENIED as moot; and

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2. Plaintiff’s “Notice Confirming Court is Intentionally Violating ADA” (ECF No.

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22) is construed as a motion for reconsideration and is DENIED.

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Furthermore, it is HEREBY RECOMMENDED that Plaintiff’s complaint (ECF No.

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1) be dismissed with prejudice and without leave to amend for failure to establish subject

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matter jurisdiction.

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The findings and recommendation are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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thirty (30) days after being served with the findings and recommendation, Plaintiff may

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file written objections with the Court. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to

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file objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 18, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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