Nava v. California Department of Motor Vehicles

Filing 7

ORDER DISMISSING First Amended Complaint with Leave to Amend signed by Magistrate Judge Edmund F. Brennan on 7/8/11; Plaintiff is granted 30 days from the date of this order to file a second amended complaint.(Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VILMA NAVA,
Plaintiff,

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No. CIV S-11-0012 FCD EFB PS

vs.
CALIFORNIA DEPARTMENT OF
MOTOR VEHICLES,

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Defendant.
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ORDER
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On April 28, 2011, the undersigned granted plaintiff’s request for leave to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915, but dismissed plaintiff’s complaint with leave to

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amend pursuant to 28 U.S.C. § 1915(e)(2). Dckt. No. 3. The court noted that “[a]lthough

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[plaintiff’s] complaint does not state what statutes or constitutional provisions plaintiff

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alleges defendant violated, the civil cover sheet attached to plaintiff’s complaint indicates that

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plaintiff is purporting to state a claim under Titles I and IV of the Americans with Disabilities

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Act (“ADA”), 42 U.S.C. §§ 12101 et seq.” Id. at 3. The court then dismissed plaintiff’s

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complaint since plaintiff failed to establish any of the elements of a Title I or a Title IV ADA

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claim, but gave plaintiff leave to file an amended complaint. Id. at 4. The court informed

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plaintiff that should she choose to file an amended complaint, she needed to allege the

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elements of an ADA claim. Id. The court provided that to allege a Title I claim, the amended
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complaint “must allege that [plaintiff] is disabled within the meaning of the ADA and that she is

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a qualified individual who can perform the essential function of her position with reasonable

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accommodations, and she shall specifically allege how defendant discriminated against her on

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the basis of that disability,” and to allege a Title IV claim, the amended complaint “must allege

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that [plaintiff] was involved in a protected activity, that defendant subjected her to an adverse

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action, and that there is a causal link between the protected activity and defendant’s action.” Id.

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On June 29, 2011, plaintiff filed an amended complaint. Dckt. No. 6. The amended

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complaint alleges that defendant terminated her health benefits and her life insurance benefits.

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Id. However, the amended complaint still does not allege any of the elements of either a Title I

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or a Title IV ADA claim, nor does it allege the elements of any other federal causes of action.

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As noted in the April 28, 2011 order, although pro se pleadings are liberally construed,

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see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be

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dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must
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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007)

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(citing Conley v. Gibson, 355 U.S. 41 (1957)).

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Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only

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those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins.

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Co., 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 &

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1332, confer “federal question” and “diversity” jurisdiction, respectively. Federal question

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jurisdiction requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2)

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allege a “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or

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(3) be authorized by a federal statute that both regulates a specific subject matter and confers

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federal jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity

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jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the

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matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World

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Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction

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of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of

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subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys

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Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

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Because plaintiff’s amended complaint still fails to allege the elements of either a Title I

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or a Title IV ADA claim, the amended complaint will once again be dismissed. However,

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plaintiff is granted leave to file a second amended complaint to the extent that she can allege

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each of the elements of a Title I and/or Title IV ADA claim, as described above, or the elements

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of another federal cause of action. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc) (district courts must afford pro se litigants an opportunity to amend to correct any

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deficiency in their complaints).
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Plaintiff is reminded that the court cannot refer to prior pleadings in order to make an

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amended complaint complete. Local Rule 220 requires that an amended complaint be complete

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in itself. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once plaintiff files a

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second amended complaint, the first amended complaint no longer serves any function in the

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case. Therefore, “a plaintiff waives all causes of action alleged in the original complaint which

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are not alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814

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(9th Cir. 1981), and defendants not named in an amended complaint are no longer defendants.

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in a recommendation that this

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action be dismissed. See Local Rule 110.

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Accordingly, IT IS ORDERED that:

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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

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amended complaint that complies with the directives herein. The amended complaint must bear

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the docket number assigned to this case and must be labeled “Second Amended Complaint.”

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Plaintiffs must file an original and two copies of the second amended complaint. Failure to

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timely file a second amended complaint in accordance with this order will result in a

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recommendation this action be dismissed.

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DATED: July 8, 2011.

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