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)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
LEIGH DAVIS,
11
Plaintiff,
12
13
14
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
15
Defendant.
16
(ECF NO. 22)
18
FINDINGS AND RECOMMENDATION TO
DISMISS COMPLAINT WITH PREJUDICE
AND WITHOUT LEAVE TO AMEND
19
(ECF NO. 1)
20
THIRTY
(30)
DEADLINE
17
DAY
OBJECTION
21
22
23
I.
Procedural History
24
Plaintiff Leigh Davis proceeds pro se proceeds pro se and in forma pauperis in
25
this complaint against American Express Prepaid Card Management Corporation,
26
seeking relief under the Federal Credit Reporting Act, the Federal Credit Card
27
Responsibility and Disclosure Act, and various provisions of state law. (ECF No. 1.)
28
1
On August 26, 2016, the undersigned screened Plaintiff’s complaint and
2
concluded that it did not state a claim that would confer jurisdiction on the Court. The
3
undersigned recommended that the complaint be dismissed with leave to amend. (ECF
4
No. 9.) Before the findings and recommendations were addressed by the District Judge,
5
Plaintiff filed an interlocutory appeal. (ECF No. 13.) The appeal was dismissed for lack of
6
jurisdiction. (ECF No. 16.) Thereafter, the District Judge adopted the findings and
7
recommendation and granted Plaintiff thirty days in which to file an amended complaint.
8
(ECF No. 21.)
9
On January 12, 2017, Plaintiff filed a motion for a fourteen day extension of time
10
to file an amended complaint. (ECF No. 21.) On March 1, 2017, Plaintiff filed a document
11
styled, “Notice: 1. Confirming Court is intentionally violating ADA and 2. Objection to the
12
Court’s Order to file amended complaint and submitting on the original complaint.” (ECF
13
No. 22.)
14
II.
Discussion
15
Plaintiff states that she does not intend to amend and instead wishes to proceed
16
with her original complaint. Thus, Plaintiff has elected to stand on her complaint, despite
17
the deficiencies previously noted by the Court. See Edwards v. Marin Park, Inc., 356
18
F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). In light of
19
Plaintiff’s election, the undersigned’s prior screening order, and the District Judge’s prior
20
review of that screening order, the Court will recommend that the complaint be
21
dismissed for failure to establish subject matter jurisdiction.
Furthermore, in light of Plaintiff’s election not to amend, the Court will deny as
22
23
moot the motion for extension of time in which to file an amended complaint.
24
III.
25
26
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.)
27
28
2
1
To the extent Plaintiff seeks reconsideration of the Court’s prior order,
2
reconsideration will be denied. “A motion for reconsideration should not be granted,
3
absent highly unusual circumstances, unless the district court is presented with newly
4
discovered evidence, committed clear error, or if there is an intervening change in the
5
controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d
6
873, 880 (9th Cir. 2009). “A motion for reconsideration may not be used to raise
7
arguments or present evidence for the first time when they could reasonably have been
8
raised in earlier litigation.” Id.
9
considered by the court before rendering its original decision fails to carry the moving
10
party's burden.” U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir.
11
2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856-57
12
(D.N.J. 1992)). Similarly, Local Rule 230(j) requires that a party seeking reconsideration
13
show that “new or different facts or circumstances are claimed to exist which did not
14
exist or were not shown upon such prior motion, or what other grounds exist for the
15
motion . . . .”
Moreover, “recapitulation of the cases and arguments
16
Pursuant to Eastern District of California Local Rule 133(b)(2), “[a]ny person
17
appearing pro se may not utilize electronic filing except with the permission of the
18
[assigned judge].” (emphasis in original.) A request to file electronically must set out an
19
explanation for the exception. E.D. Local Rule 133(b)(3). Plaintiff’s request stated that
20
attorneys who have not made an appearance in this action wish to view court
21
documents, and that Plaintiff has a recognized disability. She further stated that leaving
22
her home, making copies, and mailing copies to the Court caused her financial hardship.
23
The Court concluded that an exception was not warranted on these grounds. Plaintiff
24
fails to present a basis for reconsideration. Indeed, Plaintiff has submitted numerous
25
filings in this action; her inability to file electronically does not appear to have hampered
26
her ability to proceed with this case.
27
28
3
1
To the extent Plaintiff contends that the Court is in violation of the Americans with
2
Disabilities Act, neither the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §
3
12101, et seq., nor § 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29
4
U.S.C. § 794, appears to apply to Plaintiff’s request. The plain language of Title II the
5
ADA excludes the federal government from the reach of the statute. 42 U.S.C. §
6
12131(1) (defining a “public entity” as any state or local government, instrumentality
7
thereof, or the National Railroad Passenger Corporation). Additionally, several courts
8
have found that the ADA does not apply to the federal government. See, e.g., Mary Jo.
9
C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 170 n.11 (2d Cir. 2013) (“Title II of the
10
ADA is not applicable to the federal government[.]” (citation and internal quotation marks
11
omitted)); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (“[T]he entire federal
12
government is excluded from the coverage of the ADA”). Similarly, the Rehabilitation Act
13
does not apply to the federal courts: it only covers Executive agencies, the United States
14
Postal Service, and certain categories of programs and activities receiving Federal
15
funding. See 29 U.S.C. § 794(a). Those programs and activities do not include the
16
courts. See 29 U.S.C. § 794(b).
To the extent Plaintiff seeks reconsideration of the Court’s prior order regarding
17
18
electronic filing, reconsideration will be denied.
19
IV.
Conclusion, Recommendation, and Order
20
Based on the foregoing, it is HEREBY ORDERED that:
21
1. Plaintiff’s motion for extension of time (ECF No. 21) is DENIED as moot; and
22
2. Plaintiff’s “Notice Confirming Court is Intentionally Violating ADA” (ECF No.
23
22) is construed as a motion for reconsideration and is DENIED.
24
Furthermore, it is HEREBY RECOMMENDED that Plaintiff’s complaint (ECF No.
25
1) be dismissed with prejudice and without leave to amend for failure to establish subject
26
matter jurisdiction.
27
28
4
1
The findings and recommendation are submitted to the United States District
2
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
3
thirty (30) days after being served with the findings and recommendation, Plaintiff may
4
file written objections with the Court. Such a document should be captioned “Objections
5
to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to
6
file objections within the specified time may result in the waiver of rights on appeal.
7
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
8
F.2d 1391, 1394 (9th Cir. 1991)).
9
10
11
IT IS SO ORDERED.
Dated:
April 18, 2017
/s/
12
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?