Randolph v. FEDEX-Federal Express Corporation

Filing 53

ORDER signed by Judge Garland E. Burrell, Jr., on 11/26/12 ORDERING that Defendant's 34 dismissal motion is GRANTED. However, Plaintiff is GRANTED leave until 12/14/2012 to file a First-Amended Complaint. Plaintiff is warned that this lawsuit may be dismissed with prejudice under Federal Rule of Civil Procedure 41(b) if Plaintiff fails to file a First-Amended Complaint on or before 12/14/2012. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWN L. RANDOLPH,
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Plaintiff,
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vs.
No. CIV S-11-0028 GEB GGH PS

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FEDEX - FEDERAL EXPRESS
CORPORATION,

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Defendant.

ORDER

__________________________________/

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On September 21, 2012, the magistrate judge filed findings and recommendations

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herein which were served on the parties and which contained notice that any objections to the

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findings and recommendations were to be filed within fourteen (14) days. Objections were filed

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on October 5, 2012, a reply was filed on October 15, 2012.

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This court reviews de novo those portions of the proposed findings of fact to

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which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v.

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Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920

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(1982). As to any portion of the proposed findings of fact to which no objection has been made,

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the court assumes its correctness and decides the motions on the applicable law. See Orand v.

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United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983).

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The portion of the September 21, 2012 findings and recommendations finding that
Defendant’s dismissal motion has merit is adopted since Plaintiff failed to plead sufficient facts
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showing she had a cognizable disability or that she is a qualified individual who could perform

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the essential functions of her job; did not allege facts to support the existence of an employment

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contract between her and Defendant; and failed to allege sufficient facts to state plausible

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negligence or intentional infliction of emotional distress claims.

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Therefore, Defendant’s dismissal motion filed on March 21, 2012 (ECF 34) is

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granted. However, Plaintiff is granted leave until December 14, 2012, to file a First-Amended

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Complaint addressing the deficiencies in her Complaint raised in Defendant’s dismissal motion.

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Further, Plaintiff is warned that this lawsuit may be dismissed with prejudice under Federal Rule

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of Civil Procedure 41(b) if Plaintiff fails to file a First-Amended Complaint on or before

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December 14, 2012.

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Dated: November 26, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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