Arya v. Calpers

Filing 9

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/26/2011 ORDERING The complaint is DISMISSED for the reasons discussed above, with leave to file a second amended complaint within 28 days from the date of service of this Order. Failure to file a second amended complaint will result in a recommendation that this action be dismissed.(Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVAN ARYA,

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Plaintiff,

No. CIV. S-11-1354 GEB GGH PS

Defendant.

ORDER

vs.
CALPERS,

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/

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Plaintiff is proceeding in this action pro se and in forma pauperis pursuant to 28

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U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28

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U.S.C. § 636(b)(1).

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On July 6, 2011, plaintiff was informed of the deficiencies in his complaint, and

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directed to file an amended complaint. Presently before the court is plaintiff’s amended

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complaint.

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The amended complaint continues to allege that CALPERS and Golden Gate

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Transit, his former employer, refused and delayed payments of Additional Retirement Service

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Credit for six years. He no longer alleges, however, as he did in the original complaint, that

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defendants discriminated against him under Title VII of the Civil Rights Act based on his

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national origin in withholding these additional retirement payments.
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Although plaintiff has now attached his right to sue letter from the EEOC, and has

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set forth the specific relief sought, he has not alleged how defendants discriminated against him,

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or even whether they discriminated against him. The amended complaint contains no claims,

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other than a passing reference to retaliation. A review of the attached documentation reflecting

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communication between plaintiff and CALPERS indicates that CALPERS made errors in regard

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to plaintiff’s retirement, but there is no showing of discrimination.

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The court is unable to determine a jurisdictional basis for this action. A federal

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court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the

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Constitution and by Congress. See Kokkonen v. Guardian Life Ins. Co, 511 U.S. 375, 377, 114

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S. Ct. 1673, 1675 (1994). U.S. Const. Art. III, § 1 provides that the judicial power of the United

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States is vested in the Supreme Court, “and in such inferior Courts as the Congress may from

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time to time ordain and establish.” Congress therefore confers jurisdiction upon federal district

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courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-

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99, 112 S. Ct. 2206, 2212 (1992). Lack of subject matter jurisdiction may be raised at any time

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by either party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93

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F.3d 593, 594-95 (9th Cir. 1996).

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The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, confer “federal

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question” and “diversity” jurisdiction, respectively. Statutes which regulate specific subject

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matter may also confer federal jurisdiction. See generally, W.W. Schwarzer, A.W. Tashima & J.

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Wagstaffe, Federal Civil Procedure Before Trial § 2:5. Unless a complaint presents a plausible

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assertion of a substantial federal right, a federal court does not have jurisdiction. See Bell v.

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Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776 (1945). A federal claim which is so insubstantial as

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to be patently without merit cannot serve as the basis for federal jurisdiction. See Hagans v.

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Lavine, 415 U.S. 528, 537-38, 94 S. Ct. 1372, 1379-80 (1974).

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For diversity jurisdiction pursuant to 28 U.S.C. § 1332, each plaintiff must be
diverse from each defendant, and the amount in controversy must exceed $75,000. For federal
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question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a

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federal law or the United States Constitution, (2) allege a “case or controversy” within the

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meaning of Article III, section 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369

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U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).

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In his amended complaint, plaintiff has failed to allege a violation of a federal

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statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., or the

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Constitution. In fact, plaintiff has alleged no legal theory under which he seeks relief, other than

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generalized retaliation. (Am. Compl. at 2.) Nor has plaintiff alleged diversity jurisdiction.

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Although plaintiff and defendants are residents of different states, it is not clear that the alleged

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amount in controversy exceeds $75,000. Plaintiff seeks $9,600 for lost interest during the years

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that CALPERS delayed in paying him the subject retirement pension. He also seeks $32,000 for

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interest he had to pay to purchase the five years of Additional Retirement Service Credit. He

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claims if CALPERS had given him the credit at the time he applied, instead of six years later, he

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would have had the funds to buy the credit instead of needing to borrow it. Finally, plaintiff

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seeks $50,000 from Golden Gate Transit “for their 2004 delays of forwarding paychecks

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retirement contributions to CALPERS,” which appears to be the reason for the CALPERS delay

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based on the documentation attached to the complaint.

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In determining the jurisdictional amount in controversy for diversity jurisdiction,

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both compensatory and punitive damages must be considered to the extent they are recoverable

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and to the extent claimed. Anthony v. Security Pacific Financial Services, Inc., 75 F.3d 311, 315

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(7th Cir. 1996). See generally Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089 (9th

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Cir. 2003); Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (punitive damages are

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included in the amount in controversy). When punitive damages are needed in order to satisfy

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the amount in controversy requirement, it must be determined whether they are in fact

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recoverable as a matter of state law. If so, there is diversity jurisdiction unless “it is clear

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‘beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover
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the jurisdictional amount.’ ” Anthony at 315, quoting Cadek v. Great Lakes Dragaway, Inc., 58

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F.3d 1209, 1212 (7th Cir. 1995). “When a claim for punitive damages makes up the bulk of the

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amount in controversy, and may even have been colorably asserted solely to confer jurisdiction,

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we should scrutinize that claim closely.” Id.

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Under California law, punitive damages are not recoverable for breach of contract

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even where the breach is gross or willful. Cates Const. Inc. v. Talbot Partners, 21 Cal. 4th 28, 61

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(1999); Tibbs v. Great Am. Ins. Co., 755 F.2d 1370, 1375 (9th Cir.1985).

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Additionally, interest and costs are excluded from the amount in controversy.

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Lamke v. Sunstate Equipment Co., 319 F. Supp.2d 1029, 1031 (N. D. Cal. 2004). The amount in

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controversy is examined by looking to each defendant. “Claims against multiple defendants may

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only be aggregated to satisfy the amount in controversy requirement if the defendants are jointly

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and severally liable.” Coast Plaza Doctors Hosp. v. Arkansas Blue Cross and Blue Shield, 2011

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WL 3756052, *2 (C.D. Cal. Aug. 25, 2011), (citing United States v. S. Pac. Transp. Co., 543

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F.2d 676, 683 (9th Cir.1976)).

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Here, plaintiff seeks a total of $41,600 ($9,600 plus $32,000) from CALPERS,

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and separately seeks $50,000 only from Golden Gate Transit. Therefore, the amounts may not be

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aggregated, and plaintiff has not met the amount in controversy requirement necessary for

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diversity jurisdiction with respect to each defendant. Furthermore, the amount of $9,600, (and

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arguably the sum of $32,000), is for interest which is excluded from the amount in controversy.

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Furthermore, since plaintiff has stated no claims for relief, it is unclear whether he

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could seek punitive damages, which although not termed as such, appears to be what he is

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seeking from Golden Gate Transit.

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Plaintiff will be given one last opportunity to amend his complaint. If plaintiff

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chooses to amend the complaint to state a federal claim, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms
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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant's actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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If plaintiff intends to proceed with jurisdiction based on diversity, he must

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properly state his claims for relief, and the amount in controversy must meet the standards set

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forth above.

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Good cause appearing, IT IS ORDERED that:

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1. The complaint is dismissed for the reasons discussed above, with leave to file a

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second amended complaint within twenty-eight (28) days from the date of service of this Order.

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Failure to file a second amended complaint will result in a recommendation that this action be

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dismissed.

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DATED: September 26, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Arya1354.2am.wpd

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