Smith v. City of Stockton, et al

Filing 33

ORDER signed by Judge Morrison C. England, Jr on 4/6/11 ORDERING dfts' motion to dismiss pltf's Second Amended Complaint 27 is GRANTED with leave to amend; pltf may file an amended complaint not later than 20 days after the date this Memorandum and Order is filed electronically. (Carlos, K)

-GGH Smith v. City of Stockton, et al

Doc. 33

1 2 3 4 5 6 7 8 9 10 11 12 13 Plaintiff, 14 v. 15 CITY OF STOCKTON, et al., 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Dionne Smith-Downs ("Plaintiff") seeks redress from Defendants San Joaquin County, the City of Stockton, and individually named police officers Eric Azarvant, Gregory Dunn, Deputy Sheriff John Nesbitt, Blair Ulring, and Sheriff Steve Moore (collectively, "Defendants") regarding a fatal incident between Defendants and Plaintiff's son, sixteen-year-old James Rivera ("Decedent"). /// /// 1 ----oo0oo---ORDER DIONNE SMITH-DOWNS, as successor and interest to Decedent James Earl Rivera, Jr., No. 2:10-cv-02495-MCE-GGH UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

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Presently before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For a recitation of the facts, see

the Court's previous order (ECF No. 17).2 California Code of Civil Procedure § 377.32 states that one who "seeks to commence an action or proceeding...as the decedent's successor in interest under the article, shall execute and file an affidavit or a declaration under penalty of perjury" that confirms decedent's personal information, the facts of their death, and other information confirming that the plaintiff is the proper successor to decedent's interests. A certified copy of

the decedent's death certificate is required to also be attached to the affidavit or declaration. Id.

For purposes of this statute, a successor in interest is "the beneficiary of the decedent's estate." Id. § 377.11. When

a decedent does not leave a will, a beneficiary of the decedent's estate is defined under the statute as "the sole person or all of the persons who succeed to a cause of action." Id. § 377.10.

Plaintiff's declaration to the Court must definitively prove she is the sole person to succeed Decedent's interests. As Plaintiff

concedes, Decedent's father is a beneficiary. (See Plaintiff's Opp., ECF No. 29, at 7.) /// All further references to "Rule" or "Rules" are to the Federal Rules of Civil Procedure unless otherwise noted. Because oral argument will not be of material assistance, the Court deemed this matter suitable for decision without oral argument. E.D. Cal. Local Rule 230 (g). 2
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Therefore, Decedent's father must be properly identified as part of Decedent's successor in interest, or be clearly excluded, for Plaintiff's claims to have proper jurisdiction. Once the court grants a motion to dismiss, they must then decide whether to grant a plaintiff leave to amend. Rule 15(a)

authorizes the court to freely grant leave to amend when there is no "undue delay, bad faith, or dilatory motive on the part of the movant." Foman v. Davis, 371 U.S. 178, 182 (1962). In fact,

leave to amend is generally only denied when it is clear that the deficiencies of the complaint cannot possibly be cured by an amended version. See DeSoto v. Yellow Freight Sys., Inc.,

957 F.2d 655, 658 (9th Cir. 1992); Balistieri v. Pacifica Police Dept., 901 F. 2d 696, 699 (9th Cir. 1990) ("A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.") (internal citations omitted). Therefore, Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 9) is GRANTED with leave to amend. Since Plaintiff's deficiencies may be resolved by further amendment, and Plaintiff has not demonstrated any bad faith or other malicious conduct, she may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. /// /// /// /// 3

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If no amended complaint is filed within said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend. IT IS SO ORDERED. Dated: April 6, 2011

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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